1 BILLING CODE: 4810-AM-P BUREAU OF CONSUMER FINANCIAL PROTECTION 12 CFR Parts 1005 and 1026 [Docket No. CFPB-2017-0015] RIN 3170-AA72 Rules Concerning Prepaid Accounts Under the Electronic Fund Transfer Act (Regulation E) and the Truth in Lending Act (Regulation Z) AGENCY: Bureau of Consumer Financial Protection. ACTION: Final rule; official interpretation; delay of effective date. SUMMARY: The Bureau of Consumer Financial Protection (Bureau) is amending Regulation E, which implements the Electronic Fund Transfer Act, and Regulation Z, which implements the Truth in Lending Act, and the official interpretations to those regulations. This rulemaking relates to a final rule published in the Federal Register on November 22, 2016, as amended on April 25, 2017, regarding prepaid accounts under Regulations E and Z. The Bureau is finalizing modifications to several aspects of that rule, including with respect to error resolution and limitations on liability for prepaid accounts where the financial institution has not successfully completed its consumer identification and verification process; application of the rule’s credit- related provisions to digital wallets that are capable of storing funds; certain other clarifications and minor adjustments; technical corrections; and an extension of the overall effective date to April 1, 2019. DATES: The amendments in this final rule are effective on April 1, 2019. The effective date of the final rule published on November 22, 2016 (81 FR 83934), as delayed on April 25, 2017
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BILLING CODE: 4810-AM-P
BUREAU OF CONSUMER FINANCIAL PROTECTION
12 CFR Parts 1005 and 1026
[Docket No. CFPB-2017-0015]
RIN 3170-AA72
Rules Concerning Prepaid Accounts Under the Electronic Fund Transfer Act
(Regulation E) and the Truth in Lending Act (Regulation Z)
AGENCY: Bureau of Consumer Financial Protection.
ACTION: Final rule; official interpretation; delay of effective date.
SUMMARY: The Bureau of Consumer Financial Protection (Bureau) is amending Regulation
E, which implements the Electronic Fund Transfer Act, and Regulation Z, which implements the
Truth in Lending Act, and the official interpretations to those regulations. This rulemaking
relates to a final rule published in the Federal Register on November 22, 2016, as amended on
April 25, 2017, regarding prepaid accounts under Regulations E and Z. The Bureau is finalizing
modifications to several aspects of that rule, including with respect to error resolution and
limitations on liability for prepaid accounts where the financial institution has not successfully
completed its consumer identification and verification process; application of the rule’s credit-
related provisions to digital wallets that are capable of storing funds; certain other clarifications
and minor adjustments; technical corrections; and an extension of the overall effective date to
April 1, 2019.
DATES: The amendments in this final rule are effective on April 1, 2019. The effective date of
the final rule published on November 22, 2016 (81 FR 83934), as delayed on April 25, 2017
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(82 FR 18975), is further delayed from April 1, 2018 to April 1, 2019. The effective date for the
addition of § 1005.19(b) is delayed from October 1, 2018 to April 1, 2019.
FOR FURTHER INFORMATION CONTACT: Yaritza Velez, Counsel, and Kristine M.
Andreassen, Krista Ayoub, and Thomas L. Devlin, Senior Counsels, Office of Regulations, at
202-435-7700 or https://reginquiries.consumerfinance.gov/.
SUPPLEMENTARY INFORMATION:
I. Summary of the Final Rule
The Bureau is finalizing amendments to its 2016 rule that created comprehensive
consumer protections for prepaid accounts under Regulation E, which implements the Electronic
Fund Transfer Act (EFTA),1 and Regulation Z, which implements the Truth in Lending Act
(TILA)2 (2016 Final Rule).3 Through its efforts to support industry implementation of the 2016
Final Rule, the Bureau learned that some industry participants believed that they would have
difficulty complying with certain provisions of the 2016 Final Rule that would have gone into
effect on October 1, 2017. To facilitate compliance, after notice and comment, the Bureau
extended the general effective date of the 2016 Final Rule to April 1, 2018 (2017 Effective Date
Proposal and 2017 Effective Date Final Rule, respectively).4 The 2016 Final Rule, as amended
by the 2017 Effective Date Final Rule, is referred to herein as the Prepaid Accounts Rule.
Based on feedback received by the Bureau through its outreach efforts to industry
regarding implementation of the 2016 Final Rule as well as in comments received on the 2017
1 15 U.S.C. 1693 et seq. 2 15 U.S.C. 1601 et seq. 3 The 2016 Final Rule was released by the Bureau on October 5, 2016 and subsequently published in the Federal Register. 81 FR 83934 (Nov. 22, 2016). 4 82 FR 13782 (Mar. 15, 2017); 82 FR 18975 (Apr. 25, 2017).
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Effective Date Proposal, the Bureau proposed to amend several provisions of the 2016 Final
Rule (June 2017 Proposal).5 After reviewing comments received on the proposal, the Bureau is
finalizing the June 2017 Proposal generally as proposed, with certain modifications, as discussed
below. These revisions to the Prepaid Accounts Rule are intended to address, in part, certain
issues that were unanticipated by commenters on the notice of proposed rulemaking that led to
the 2016 Final Rule (2014 Proposal),6 and are intended to facilitate compliance and relieve
burden on those issues. In particular, the Bureau is:
Revising the error resolution and limited liability provisions of the Prepaid Accounts
Rule in Regulation E to provide that financial institutions are not required to resolve
errors or limit consumers’ liability on unverified prepaid accounts. For accounts where
the consumer’s identity is later verified, financial institutions are not required to limit
liability and resolve errors with regard to disputed transactions that occurred prior to
verification.
Creating a limited exception to the credit-related provisions of the Prepaid Accounts Rule
in Regulation Z for certain business arrangements between prepaid account issuers and
credit card issuers that offer traditional credit card products. This exception is designed
to address certain complications in applying the credit provisions of the Prepaid Accounts
Rule to credit card accounts linked to digital wallets that can store funds where the credit
card accounts are already subject to Regulation Z’s open-end credit card rules in
5 82 FR 29630 (June 29, 2017). 6 The Bureau released its proposal regarding prepaid accounts under Regulations E and Z, including model and sample disclosure forms, for public comment on November 13, 2014. 79 FR 77102 (Dec. 23, 2014). The Bureau had previously issued an advance notice of proposed rulemaking that posed a series of questions for public comment about how the Bureau might consider regulating general purpose reloadable cards and other prepaid products. 77 FR 30923 (May 24, 2012).
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circumstances that appear to pose lower risks to consumers. This final rule also expands
the situations in which prepaid account issuers are permitted to run negative balances on
prepaid accounts, provided certain conditions are met.
Extending the overall effective date of the Prepaid Accounts Rule to April 1, 2019.
Making clarifications or minor adjustments to provisions of the Prepaid Accounts Rule in
Regulation E related to an exclusion from the definition of prepaid account, unsolicited
issuance of access devices, several aspects of the rule’s pre-acquisition disclosure
requirements, and submission of prepaid account agreements to the Bureau.
Making technical corrections to certain provisions of the Prepaid Accounts Rule in both
Regulations E and Z.
Due to recent changes in requirements by the Office of the Federal Register, when
amending commentary the Bureau is now required to reprint certain subsections being amended
in their entirety rather than providing more targeted amendatory instructions. The length of the
commentary in this final rule thus appears much longer than what was included in the June 2017
Proposal. The Bureau is releasing an unofficial, informal redline to assist industry and other
stakeholders in reviewing the changes that this final rule is making to the Prepaid Accounts
Rule.7
II. Background
In the 2016 Final Rule, the Bureau extended Regulation E coverage to prepaid accounts
and adopted provisions specific to such accounts, and generally expanded Regulation Z’s
7 This redline can be found on the Bureau’s regulatory implementation page for the Prepaid Accounts Rule, at https://www.consumerfinance.gov/policy-compliance/guidance/implementation-guidance/prepaid-rule/. If any conflicts exist between the redline and the text of the 2016 Final Rule, the 2017 Effective Date Final Rule, or this final rule, the rules themselves, as published in the Federal Register, are the controlling documents.
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coverage to overdraft features that may be offered in conjunction with prepaid accounts. Upon
issuing the 2016 Final Rule, the Bureau initiated robust efforts to support industry
implementation.8 Information regarding the Bureau’s Prepaid Accounts Rule implementation
initiatives and available resources can be found on the Bureau’s regulatory implementation
website at https://www.consumerfinance.gov/policy-compliance/guidance/implementation-
guidance/prepaid-rule/.
In the course of the Bureau’s work to help industry implement the 2016 Final Rule, some
industry participants raised concerns about what they described as unanticipated complexities
arising from the interaction of certain aspects of the rule with certain business models and
practices, including those newly adopted, that industry participants did not fully address in their
comment letters on the 2014 Proposal. They indicated that these issues could complicate
implementation and affect consumers.
In light of these concerns, on March 9, 2017, the Bureau released the 2017 Effective Date
Proposal with a request for comment.9 In that proposal, the Bureau proposed to delay the general
effective date of the 2016 Final Rule by six months, to April 1, 2018. While the Bureau did not
propose in the 2017 Effective Date Proposal to amend any other substantive provisions of the
2016 Final Rule, many commenters nonetheless advocated for retaining, modifying, or
8 These ongoing efforts include: (1) the publication of a plain-language small entity compliance guide to help industry understand the Prepaid Accounts Rule; (2) the publication of various other implementation tools regarding the Prepaid Accounts Rule, including an executive summary of the rule, summaries of key changes for payroll card accounts and government benefit accounts, a prepaid account coverage chart, a summary of the rule’s effective date provisions, and a guide to preparing the short form disclosure; (3) the release of native design files for print and source code for web-based disclosures for all of the model and sample disclosure forms included in the Prepaid Accounts Rule; (4) meetings with industry, including trade associations and individual industry participants, to discuss and support their implementation efforts; and (5) participation in conferences and forums. The Bureau is releasing new and updated implementation materials in connection with this final rule. 9 82 FR 13782 (Mar. 15, 2017).
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eliminating various provisions of the 2016 Final Rule. These comments are discussed in the
section-by-section analyses in part V, where relevant.
On April 20, 2017, the Bureau released the 2017 Effective Date Final Rule, which
delayed the general effective date of the 2016 Final Rule until April 1, 2018.10 The Bureau
indicated in that notice that it intended to seek comment on targeted substantive issues raised
both through the Bureau’s outreach efforts to industry regarding implementation and in
comments received on the 2017 Effective Date Proposal.
The Bureau subsequently proposed to amend several provisions of the 2016 Final Rule
via the June 2017 Proposal. After reviewing public comments received on the proposal, the
Bureau is finalizing the June 2017 Proposal generally as proposed, with certain modifications, as
discussed below.
III. Summary of the Rulemaking Process
A. The June 2017 Proposal
In the June 2017 Proposal, the Bureau proposed to amend several provisions of the 2016
Final Rule, largely based on feedback received by the Bureau through its outreach efforts to
industry regarding implementation of the 2016 Final Rule as well as in comments received on
the 2017 Effective Date Proposal. In particular, the proposed rule would have: revised the error
resolution and limited liability provisions of the Prepaid Accounts Rule with respect to
unverified accounts; created a limited exception to the credit-related provisions of the 2016 Final
Rule in Regulation Z for certain business arrangements between prepaid account issuers and
credit card issuers that offer traditional credit card products; and made clarifications or minor
10 82 FR 18975 (Apr. 25, 2017). The 2017 Effective Date Final Rule did not delay the October 1, 2018 effective date of the requirement to submit prepaid account agreements to the Bureau in Regulation E § 1005.19(f)(2).
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adjustments to several provisions of the 2016 Final Rule. The contents of the June 2017
Proposal are discussed in detail in the section-by-section analysis in part V below.
The Bureau also solicited comment on whether a further delay of the rule’s effective date
would be necessary and appropriate in light of the proposed amendments, and whether a specific
provision addressing early compliance would be necessary and appropriate.
B. Feedback Provided to the Bureau
The comment period for the June 2017 Proposal closed on August 14, 2017. The Bureau
received 32 comment letters from consumer advocacy groups; national and regional trade
associations; members of the prepaid industry, including issuing banks and credit unions,
program managers, and a digital wallet provider; a think tank; and several anonymous
commenters. The Bureau also considered comments received after the comment period closed,
via several ex parte meetings and other communications.11 Materials on the record, including
summaries of ex parte communications, are publicly available at http://www.regulations.gov.
Relevant information received is discussed below in the section-by-section analysis and
subsequent parts of this notice, as applicable. The Bureau considered all the comments it
received regarding the proposal, made certain modifications, and is adopting this final rule as
described in parts V and VI below.
In addition to the comments summarized in the section-by-section analysis in part V
below, many commenters raised other issues that were beyond the scope of what the Bureau
proposed. These comments argued for the Bureau to take a number of actions, including:
refining or limiting the scope of the definition of “prepaid account” (for example, to clarify the
11 The Bureau’s Policy on Ex Parte Presentations in Rulemaking Proceedings is available at 82 FR 18687 (Apr. 21, 2017).
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treatment of so-called “checkless checking” accounts or to exempt digital wallets from coverage
under the rule); making changes to, or exempting certain prepaid accounts from, the requirement
to provide certain disclosures (such as the long form, short form, and/or oral disclosures, in
various circumstances); either expanding or reducing the scope of Regulation E’s compulsory
use prohibition; eliminating the requirement that issuers submit their prepaid account agreements
to the Bureau or modifying the general timeframe for agreement submissions; exempting credit
unions from coverage under the rule; generally not imposing additional requirements or price
caps on prepaid accounts; and rescinding the rule entirely. Other commenters provided more
general feedback to the Bureau, offering suggestions about how the Bureau could improve both
its rulemaking and regulatory implementation processes, both in general and in particular with
respect to the Prepaid Accounts Rule. The Bureau will continue its outreach to industry and
other stakeholders to understand their experiences in implementing the Prepaid Accounts Rule
and welcomes feedback regarding its rulemaking and regulatory implementation processes more
generally.
IV. Legal Authority
The Bureau is exercising its rulemaking authority pursuant to EFTA section 904(a) and
(c), sections 1022(b) and 1032(a) of the Dodd-Frank Wall Street Reform and Consumer
Protection Act (Dodd-Frank Act),12 and TILA section 105(a) to amend provisions of Regulations
E and Z affected by the Prepaid Accounts Rule, as discussed in this part IV and throughout the
section-by-section analysis in part V below.
12 Public Law 111-203, section 1084, 124 Stat. 2081 (2010) (codified at 15 U.S.C. 1693a et seq.).
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The legal authority for the 2016 Final Rule is described in detail in that rule’s
SUPPLEMENTARY INFORMATION.13 As amended by the Dodd-Frank Act, EFTA section 904(a)
and (c)14 authorizes the Bureau to prescribe regulations to carry out the purposes of EFTA and
provides that such regulations may contain such classifications, differentiations, or other
provisions, and may provide for such adjustments and exceptions, for any class of electronic
fund transfers (EFTs) or remittance transfers as in the judgment of the Bureau are necessary or
proper to effectuate the purposes of EFTA, to prevent circumvention or evasion thereof, or to
facilitate compliance therewith.15 As amended by the Dodd-Frank Act, TILA section 105(a)16
directs the Bureau to prescribe regulations to carry out the purposes of TILA and provides that
such regulations may contain such additional requirements, classifications, differentiations, or
other provisions, and may provide for such adjustments and exceptions for all or any class of
transactions as in the judgment of the Bureau are necessary or proper to effectuate the purposes
of TILA, to prevent circumvention or evasion thereof, or to facilitate compliance therewith.17 18
13 See, e.g., 81 FR 83934, 83958-60 (Nov. 22, 2016). The legal authority for the 2017 Effective Date Final Rule is described in that rule’s SUPPLEMENTARY INFORMATION. 82 FR 18975, 18978 (Apr. 25, 2017). 14 15 U.S.C. 1693b(a) and (c). 15 EFTA section 902 establishes that the purpose of the statute is to provide a basic framework establishing the rights, liabilities, and responsibilities of participants in electronic fund and remittance transfer systems but that its primary objective is the provision of individual consumer rights. 15 U.S.C. 1693. 16 15 U.S.C. 1604(a). 17 Pursuant to TILA section 102(a), a purpose of TILA is “to assure a meaningful disclosure of credit terms so that the consumer will be able to compare more readily the various credit terms available to him and avoid the uninformed use of credit.” 15 U.S.C. 1601(a). Moreover, this stated purpose is tied to Congress’ finding that “economic stabilization would be enhanced and the competition among the various financial institutions and other firms engaged in the extension of consumer credit would be strengthened by the informed use of credit[.]” Id. 18 TILA section 105(d) generally provides that a regulation requiring any disclosure that differs from the disclosures previously required by parts A, D, or E of TILA shall have an effective date “of that October 1 which follows by at least six months the date of promulgation.” Section 105(d) further provides that the Bureau “may at its discretion take interim action by regulation, amendment, or interpretation to lengthen the period of time permitted for creditors or lessors to adjust their forms to accommodate new requirements.” As it did in the 2017 Effective Date Final Rule, the Bureau is exercising its discretion under TILA section 105(d) to lengthen the period to April 1, 2019. The
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Section 1032(a) of the Dodd-Frank Act19 provides that the Bureau may prescribe rules to
ensure that the features of any consumer financial product or service, both initially and over the
term of the product or service, are fully, accurately, and effectively disclosed to consumers in a
manner that permits consumers to understand the costs, benefits, and risks associated with the
product or service, in light of the facts and circumstances. Additionally, under section
1022(b)(1) of the Dodd-Frank Act,20 the Bureau has general authority to prescribe rules as may
be necessary or appropriate to enable the Bureau to administer and carry out the purposes and
objectives of the Federal consumer financial laws, and to prevent evasions thereof. EFTA,
TILA, and title X of the Dodd-Frank Act are Federal consumer financial laws. Accordingly, in
finalizing this rule, the Bureau is exercising its authority under Dodd-Frank Act section
1022(b)21 to prescribe rules under EFTA, TILA, and title X of the Dodd-Frank Act that carry out
the purposes and objectives and prevent evasion of those laws. Section 1022(b)(2) of the Dodd-
Frank Act22 prescribes certain standards for rulemaking that the Bureau must follow in
exercising its authority under section 1022(b)(1).
V. Section-by-Section Analysis
A. Overview of the Amendments to Regulations E and Z
As discussed above, the Prepaid Accounts Rule amended Regulation E, which
implements EFTA, and Regulation Z, which implements TILA, along with the official
Bureau believes that the changes the Prepaid Accounts Rule will require to disclosures pursuant to Regulation Z warrant a delayed effective date that conforms to the rest of the rule. 19 12 U.S.C. 5532(a). 20 12 U.S.C. 5512(b)(1). 21 12 U.S.C. 5512(b). 22 12 U.S.C. 5512(b)(2).
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interpretations thereto. Based on feedback received by the Bureau through its outreach efforts to
industry regarding implementation as well as in comments received on the 2017 Effective Date
Proposal, and following notice and comment on the June 2017 Proposal, the Bureau is amending
several provisions of the Prepaid Accounts Rule. This overview provides a summary of the
amendments; each amendment, along with its rationale, is discussed in detail in the section-by-
section analyses that follow.
Error resolution and limited liability. The Bureau is amending Regulation E
§§ 1005.11(c)(2)(i), 1005.18(d)(1)(ii) and (e)(3), comments 18(e)-4 through 6, and Appendix A-
7(c) to provide that Regulation E’s error resolution and limited liability requirements do not
extend to prepaid accounts that have not successfully completed the financial institution’s
consumer identification and verification process (i.e., accounts that have not concluded the
process, accounts where the process is concluded but the consumer’s identity could not be
verified, and accounts in programs for which there is no such process). For accounts where the
consumer’s identity is later verified, financial institutions are not required to resolve errors and
limit liability with regard to disputed transactions that occurred prior to verification. The Bureau
is also making related changes to model disclosure language. In addition, the Bureau is requiring
that, for accounts in programs where there is no verification process, financial institutions either
explain in their initial disclosures their error resolution process and limitations on consumers’
liability for unauthorized transfers, or explain that there are no such protections, and that such
institutions comply with the process (if any) that they disclose.
Credit card accounts linked to prepaid accounts. The Bureau is creating a limited
exception to the credit-related provisions of the Prepaid Accounts Rule in Regulation Z for
certain business arrangements between prepaid account issuers and credit card issuers that offer
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traditional credit card products. This exception is designed to address certain complications in
applying the credit provisions of the Prepaid Accounts Rule to credit card accounts linked to
digital wallets that can store funds where the credit card accounts are already subject to
Regulation Z’s open-end credit card rules in circumstances that appear to pose lower risks to
consumers.
Specifically, the Bureau is amending the definition of “business partner” in
§ 1026.61(a)(5)(iii) and related commentary to exclude business arrangements between prepaid
account issuers and issuers of traditional credit cards from coverage under the Prepaid Accounts
Rule’s tailored provisions applicable to hybrid prepaid-credit cards if certain conditions are
satisfied. The exclusion applies only to traditional credit card accounts that are linked to a
prepaid account. In order to qualify for the exclusion, certain conditions must be satisfied,
including that the parties cannot allow the prepaid card to access credit from the credit card
account in the course of a transaction with the prepaid card unless the consumer has submitted a
written request to authorize linking the two accounts that is separately signed or initialized,
cannot condition the acquisition or retention of either account on whether the consumer
authorizes such a linkage, and do not vary certain terms and conditions based on whether the two
accounts are linked. Under this exception, the linked credit card account will still receive the
protections in Regulation Z that generally apply to a credit card account under an open-end (not
home-secured) consumer credit plan, but the tailored provisions in the Prepaid Accounts Rule for
hybrid prepaid-credit cards will not apply.
Negative balances on prepaid accounts. The Bureau is making changes to Regulation Z
to address certain complications related to prohibiting negative balances on digital wallets that
are prepaid accounts when a covered separate credit feature offered by a business partner is
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attached to the digital wallet. Specifically, the Bureau is expanding the exception in
§ 1026.61(a)(4) that allows prepaid account issuers to provide certain incidental forms of credit
structured as a negative balance on the asset feature of prepaid accounts without triggering
Regulation Z and the other protections for hybrid prepaid-credit cards. Prior to this final rule, the
exception only applied where (1) the prepaid card cannot access credit from a covered separate
credit feature accessible by a hybrid prepaid-credit card; (2) the prepaid account issuer has a
general policy and practice of declining transactions that will take the account negative (at least
outside of the situations involving incidental credit); and (3) the prepaid account issuer generally
does not charge credit-related fees. The Bureau is amending § 1026.61(a)(4) to allow a prepaid
account issuer to take advantage of the exception in § 1026.61(a)(4) with respect to the negative
balance even if a covered separate credit feature offered by a business partner is attached to the
prepaid account so long as the other prerequisites contained in § 1026.61(a)(4) are satisfied. The
Bureau is also making modifications to § 1026.61(a)(1)(iii) and (a)(3)(ii) and the commentary
accompanying § 1026.61(a)(3) and (4) related to this change, as well as modifications to certain
commentary elsewhere in Regulation Z for consistency with this change to § 1026.61(a)(4).
Effective date. The Bureau is extending by an additional 12 months the general effective
date of the Prepaid Accounts Rule, to April 1, 2019. The Bureau is also extending the effective
date for the agreement submission requirement in § 1005.19(b) to April 1, 2019. The Bureau is
making conforming changes to §§ 1005.18(b)(2)(ix)(D), (h), and 1005.19(f) and the commentary
accompanying § 1005.18(b)(2)(ix)(D) and (E), and (h), and removing the commentary that
accompanied § 1005.19(f), to reflect the effective date change and the alignment of the general
effective date with the effective date of the agreement submission requirement.
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Exclusion from coverage for certain loyalty, award, or promotional gift cards. The
revisions to Regulation E § 1005.2(b)(3)(ii)(D)(3) and new comment 2(b)(3)(ii)-4 clarify that the
exclusion from the Prepaid Accounts Rule for loyalty, award, or promotional gift cards applies
both to such products as defined in § 1005.20(a)(4) as well as those that satisfy the criteria in
§ 1005.20(a)(4)(i) and (ii) and are excluded from § 1005.20 pursuant to § 1005.20(b)(4) because
they are not marketed to the general public.
Unsolicited issuance of access devices and pre-acquisition disclosures for prepaid
accounts without consumer choice. The revisions to comment 18(a)-1 and to § 1005.18(b)(1)(i)
and comment 18(b)(1)(i)-1 clarify how the provisions regarding unsolicited issuance of access
devices and the timing of pre-acquisition disclosures apply to prepaid products where a financial
institution or third party making a disbursement via a prepaid account does not offer any
alternative means for a consumer to receive the funds.
Pre-acquisition disclosures. Several provisions in this final rule provide additional
clarity and flexibility with respect to the Prepaid Accounts Rule’s pre-acquisition disclosure
requirements. The revisions to § 1005.18(b)(1)(ii)(D) and comment 18(b)(1)(ii)-4 allow
financial institutions offering prepaid accounts that qualify for the retail location exception in
§ 1005.18(b)(1)(ii) to satisfy the requirement that they provide the long form disclosure after
acquisition by allowing the long form disclosure to be delivered electronically without receiving
consumer consent under the Electronic Signatures in Global and National Commerce Act (E-
Sign Act),23 if it is not provided inside the prepaid account packaging material and the financial
institution is not otherwise mailing or delivering to the consumer written account-related
23 15 U.S.C. 7001 et seq.
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communications within 30 days of obtaining the consumer’s contact information. Revisions to
§ 1005.18(b)(6)(i)(B) and (C) and comment 18(b)(6)(i)(B)-1 and new comment 18(b)(6)(i)-1
(formerly comment 18(b)(1)(iii)-2) clarify that if a financial institution provides pre-acquisition
disclosures in writing and a consumer subsequently completes the acquisition process online or
by telephone, the financial institution need not provide the disclosures again electronically or
orally. The revisions to § 1005.18(b)(2)(ix)(C) and comment 18(b)(2)(ix)(C)-1.ii provide
prepaid account issuers additional flexibility in disclosing additional fee types on the short form.
Specifically, they permit financial institutions disclosing additional fee types with three or more
fee variations to consolidate those variations into two categories and allow those two categories
to be disclosed on the short form.
Section 1005.18(b)(9)(i)(C) requires a financial institution to provide pre-acquisition
disclosures in a foreign language if the financial institution provides a means for the consumer to
acquire a prepaid account by telephone or electronically principally in that foreign language.
The Bureau is amending § 1005.18(b)(9)(i)(C), adding new comment 18(b)(9)-1.ii.D, and
making conforming changes in comments 18(b)(9)-1.i.E and ii.B to provide that foreign
language disclosures are not required for payroll card accounts and government benefit accounts
where the foreign language is offered by telephone only via a real-time language interpretation
service provided by a third party, or directly by an employer or government agency on an
informal or ad hoc basis as an accommodation to prospective payroll card account or government
benefit account recipients.
Submission of prepaid account agreements. The Bureau is making several changes to the
rules governing submission of prepaid account agreements to the Bureau in § 1005.19. The
revisions to § 1005.19(b)(2) and comment 19(a)(2)-1.vii, and new comment 19(b)(2)-2, allow
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prepaid account issuers to delay submitting a change in the list of names of other relevant parties
to a particular prepaid account agreement (such as employers for a payroll card agreement) until
the earlier of such time as the issuer is submitting other changes to the Bureau or May 1 of each
year (for any updates through April 1 that have not previously been submitted). The revisions to
§ 1005.19(b)(6)(ii) and (iii) and comment 19(b)(6)-3 permit short form and long form disclosures
to be provided to the Bureau as separate addenda to the agreement, rather than integrated into the
agreement or as a single addendum. The Bureau is also making changes in conformance with
these revisions elsewhere in § 1005.19 and related commentary.
Technical corrections. The Bureau is making technical corrections in Regulations E and
Z, such as correcting typographical errors, editing text for consistency, and making similar minor
changes to various provisions of the Prepaid Accounts Rule, which are not intended to change
the meaning of the Prepaid Accounts Rule.
Regulation E
Subpart A—General
Section 1005.2 Definitions
2(b) Account
2(b)(3) Prepaid Account
2(b)(3)(ii)
2(b)(3)(ii)(D)
In the 2016 Final Rule, the Bureau extended Regulation E coverage to prepaid accounts
by creating a new defined term—“prepaid account”—in § 1005.2(b)(3) as a subcategory of the
definition of “account” in § 1005.2(b)(1). The definition of prepaid account in § 1005.2(b)(3)
covers a range of products including general purpose reloadable (GPR) cards, as well as other
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products such as certain non-reloadable accounts and digital wallets. It also contains several
exclusions from the definition of prepaid account, including for gift certificates; store gift cards;
loyalty, award, or promotional gift cards; and general-use prepaid cards that are both marketed
and labeled as gift cards or gift certificates, all of which are subject to a separate set of
requirements under 2009 legislation and implementing regulations.24 The exclusion for loyalty,
award, or promotional gift cards refers to such products as defined in § 1005.20(a)(4) and (b).25
Section 1005.20(a)(4) defines the term “loyalty, award, or promotional gift card” as a card, code,
or other device that is issued on a prepaid basis primarily for personal, family, or household
purposes to a consumer in connection with a loyalty, award, or promotional program; is
redeemable upon presentation at one or more merchants for goods or services, or usable at
automated teller machines; and sets forth certain disclosures, as applicable, indicating that it is
issued for loyalty, award, or promotional purposes and setting forth its expiration date as well as
the amount of any fees and the conditions under which they may be imposed. Section
1005.20(b) lists the exclusions from coverage under the Gift Card Rule, one of which is for
loyalty, award, or promotional gift cards.26
The Bureau explained in the 2016 Final Rule its reasoning for excluding gift certificates,
store gift cards, and general-use prepaid cards that are both marketed and labeled as gift cards or
24 § 1005.2(b)(3)(ii)(D). The exclusions in § 1005.2(b)(3)(ii)(D) each reference specific provisions in § 1005.20, which houses the Board’s 2010 rule implementing certain sections of the Credit Card Accountability Responsibility and Disclosure Act of 2009 (Public Law 111-24, 123 Stat. 1734 (2009) (Credit CARD Act)) applicable to gift cards, gift certificates, and certain types of general-use prepaid cards that are marketed or labeled as gift cards (Gift Card Rule). For products marketed and sold as gift cards (and that satisfy certain other conditions), the Gift Card Rule requires certain disclosures, limits the imposition of certain fees, and contains other restrictions. The Gift Card Rule is distinct from the rest of subpart A of Regulation E, however, and does not provide consumers who use gift cards with the other substantive protections of Regulation E, such as error resolution and limited liability protections or periodic statements. 25 § 1005.2(b)(3)(ii)(D)(3). 26 § 1005.20(b)(3).
18
gift certificates from the definition of prepaid account. Specifically, the Bureau stated that, after
considering the comments on the 2014 Proposal, it remained convinced that subjecting this
general category of products to both the Gift Card Rule and the requirements of the 2016 Final
Rule would place a significant burden on industry without a corresponding consumer benefit. In
discussing its rationale for having proposed these exclusions in the 2014 Proposal, the Bureau
also stated that, among other things, it was concerned about the possibility of consumer
confusion regarding products covered by both regimes, though it did not believe the exclusion
should extend to products that consumers may use as or confuse with transaction accounts even
if such products were also covered by the Gift Card Rule.27 The Bureau also expressed concern
that, were it to impose requirements for access to account information and error resolution and
create limits on consumers’ liability for unauthorized EFTs, the cost structure of gift cards could
change dramatically because, unlike other types of prepaid products, many gift cards do not
typically offer these protections.28
The Bureau’s Proposal
As explained in the June 2017 Proposal, the Bureau became aware through its outreach
efforts to industry regarding implementation that there may be some confusion as to whether the
exception in § 1005.2(b)(3)(ii)(D)(3) extends to loyalty, award, or promotional gift cards that do
not contain disclosures pursuant to § 1005.20(a)(4)(iii) but that are nonetheless excluded from
coverage under the Gift Card Rule pursuant to § 1005.20(b)(4) because they are not marketed to
27 With respect to general-use prepaid products, the Bureau excluded only such products that were both marketed and labeled as gift cards or gift certificates. The Bureau was concerned that, absent this approach, some products it intended to cover as prepaid accounts may be inadvertently excluded due to occasional or incidental marketing activities, and that consumers would unwittingly think they carry the same protections as other prepaid accounts under the Prepaid Accounts Rule. 81 FR 83934, 83977 (Nov. 22, 2016). 28 Id. at 83976-77.
19
the general public. Industry stakeholders requested that the Bureau make clear that these cards
are excluded from coverage under the Prepaid Accounts Rule. In the alternative, they requested
that, if loyalty, award, or promotional gift cards that do not provide the § 1005.20(a)(4)(iii)
disclosures are in fact covered by the Prepaid Accounts Rule, the Bureau clarify the timing to
add such disclosures in order to qualify for the exclusion under § 1005.2(b)(3)(ii)(D)(3),
particularly for cards that have already been distributed to consumers for whom the financial
institution does not have contact information.
The Bureau proposed to clarify the scope of this exclusion by revising
§ 1005.2(b)(3)(ii)(D)(3) to exclude a loyalty, award, or promotional gift card as defined in
§ 1005.20(a)(4), or that satisfies the criteria in § 1005.20(a)(4)(i) and (ii) and is excluded from
§ 1005.20 pursuant to § 1005.20(b)(4). The Bureau also proposed to add comment 2(b)(3)(ii)-4
to explain that proposed § 1005.2(b)(3)(ii)(D)(3) would exclude loyalty, award, or promotional
gift cards as defined in § 1005.20(a)(4); those cards are excluded from coverage under § 1005.20
pursuant to § 1005.20(b)(3). New comment 2(b)(3)(ii)-4 would have further explained that
proposed § 1005.2(b)(3)(ii)(D)(3) would also exclude cards that satisfy the criteria in
§ 1005.20(a)(4)(i) and (ii) and are excluded from coverage under § 1005.20 pursuant to
§ 1005.20(b)(4) because they are not marketed to the general public; such products would not be
required to set forth the disclosures enumerated in § 1005.20(a)(4)(iii) in order to be excluded
pursuant to proposed § 1005.2(b)(3)(ii)(D)(3).
Comments Received
Commenters, including industry trade associations, a think tank, and an anonymous
commenter, supported the proposed revision to § 1005.2(b)(3)(ii)(D)(3). These commenters
agreed that, given the limited nature and use of these types of loyalty, award, and promotional
20
gift cards, it would be appropriate for the Bureau to exclude them from coverage under the
Prepaid Accounts Rule. The anonymous commenter stated that because these cards tend to be
non-reloadable, small dollar products that are not marketed to the general public, subjecting them
to more robust Regulation E requirements would be overly burdensome to industry while
providing little consumer benefit. One of the trade associations cautioned that, while it
appreciated the proposed exception, it expects that few, if any, products would benefit from the
exception because it believes that virtually all loyalty, award, and promotional gift cards already
provide the § 1005.20(a)(4)(iii) disclosures and thus qualify for the § 1005.20(b)(3) exclusion
under the Gift Card Rule. The Bureau received no comments opposing this aspect of the
proposal.
In response to the Bureau’s request for comment regarding whether, in the alternative,
loyalty, award, or promotional gift cards that do not provide the disclosures enumerated by
§ 1005.20(a)(4)(iii) should be covered by the Prepaid Accounts Rule but provided with certain
transitional exclusions and accommodations, a trade association stated that all loyalty, award, or
promotional gift cards should be excluded from the definition of prepaid account, regardless of
the method by which the product qualifies as a loyalty, award, or promotional gift card, and
therefore the Bureau should not adopt this alternative proposal.
Many commenters did not respond regarding the Bureau’s proposed revision to
§ 1005.2(b)(3)(ii)(D)(3) and related commentary specifically but instead commented on the
definition of “prepaid account” more broadly, urging the Bureau to adopt additional exclusions
for other types of products considered prepaid accounts under the 2016 Final Rule. For example,
several of these commenters, including trade associations, a program manager, an issuing bank,
and an anonymous commenter, urged the Bureau to exclude products that are not marketed to the
21
general public, such as utility company refund cards, jury duty cards, prison release cards, and
cards attached to qualified tuition savings plans (e.g., 529 plans).29 Some of these commenters
also urged the Bureau to exclude certain limited-use disbursement cards, such as those used for
customer service purposes, arguing that they are akin to loyalty, award, or promotional gift
cards.30 In addition, a program manager and a trade association expressed concern about the
limited examples of healthcare and employee benefit products that are excluded from the Prepaid
Accounts Rule.31 These commenters stated that it is unclear whether other types of healthcare
products—such as ABLE Act savings plans32—qualify for the 2016 Final Rule’s exclusions for
accounts loaded only with funds from a health savings account or dependent care assistance
program.
The Final Rule
For the reasons set forth herein, the Bureau is finalizing the revisions to
§ 1005.2(b)(3)(ii)(D)(3) and adopting new comment 2(b)(3)(ii)-4 as proposed. The Bureau
29 A 529 plan is operated by a State or educational institution, with tax advantages and potentially other incentives to make it easier to save for college and other post-secondary training for a designated beneficiary, such as a child or grandchild. Internal Revenue Service, 529 Plans: Questions and Answers, available at https://www.irs.gov/newsroom/529-plans-questions-and-answers (last visited Jan. 8, 2018); see 26 U.S.C. 529 et seq. 30 An anonymous commenter similarly requested that the Bureau exclude from coverage products that are issued to independent contracts for payments in connection with commercial activity, asserting that, among other things, these products are not established primarily for personal, family, or household purposes. Pursuant to existing § 1005.2(b)(1), Regulation E applies only to accounts that are established primarily for personal, family, or household purposes; accounts that are not established primarily for personal, family, or household purposes are not subject to the Regulation. 31 An account “loaded only with funds from a health savings account, flexible spending arrangement, medical savings account, health reimbursement arrangement, dependent care assistance program, or transit or parking reimbursement arrangement” is excluded from the definition of a prepaid account. § 1005.2(b)(3)(ii)(A). 32 The ABLE Act permits a State to establish and maintain a tax-advantaged savings program under section 529A of the Internal Revenue Code. Contributions may be made to a 529A account established for a designated beneficiary to pay for qualified disability expenses. Internal Revenue Service, Tax Benefit for Individuals With Disabilities: IRC Section 529A, available at https://www.irs.gov/government-entities/federal-state-local-governments/tax-benefit-for-disability-irc-section-529a (last visited Jan. 8, 2018).
22
believes it is appropriate to exclude loyalty, award, or promotional gift cards from coverage
under the Prepaid Accounts Rule regardless of whether they provide disclosures pursuant to
§ 1005.20(a)(4)(iii), given the limited nature and use of such products. Some such cards do not
meet the definition of prepaid account, as they cannot be used with multiple, unaffiliated
merchants, and are thus outside the scope of the Prepaid Accounts Rule’s coverage regardless.
With regard to any such cards that do meet the definition of prepaid account, the Bureau believes
it is necessary and proper to exclude those cards pursuant to its authority under EFTA section
904(c) to further the purposes of EFTA to provide a framework to establish the rights, liabilities,
and responsibilities of prepaid account consumers.
The Bureau appreciates the trade association’s comment that few if any products need
this exclusion because, it said, virtually all loyalty, award, and promotional gift cards provide the
disclosures enumerated by § 1005.20(a)(4)(iii). However, since the Bureau received questions
from industry on the status of such products without the disclosure, the Bureau believes it is
appropriate to make this clarification.
The exclusions for other types of products requested by commenters were beyond the
scope of the Bureau’s proposal, and thus the Bureau is not making any such changes at this time.
Section 1005.11 Procedures for Resolving Errors
11(c) Time Limits and Extent of Investigation
As discussed in detail in the section-by-section analysis of § 1005.18(e)(3) below, the
Bureau is making certain changes regarding error resolution and limited liability requirements to
address concerns about the treatment of unverified accounts. This change has rendered
unnecessary § 1005.11(c)(2)(i)(C), which had been added by the 2016 Final Rule to reflect the
exception to the requirement to provide provisional credit for errors asserted on unverified
23
accounts. The Bureau did not receive any comments regarding this portion of the proposal in
particular.
Specifically, § 1005.11(c)(2)(i)(C) provided that a financial institution is not required to
provisionally credit a consumer’s account if the alleged error involves a prepaid account, other
than a payroll card account or government benefit account, for which the financial institution has
not successfully completed its consumer identification and verification process, as set forth in
prior § 1005.18(e)(3)(ii). As discussed in the section-by-section analysis of § 1005.18(e)(3)
below, the Bureau is not requiring a financial institution to comply with the liability limits and
error resolution requirements under §§ 1005.6 and 1005.11 for any prepaid account, other than a
payroll card account or government benefit account, for which it has not successfully completed
its consumer identification and verification process. Because this final rule provides that such
accounts are not subject to § 1005.11, § 1005.11(c)(2)(i)(C) is no longer necessary, and thus the
Bureau is removing it as proposed. This final rule reverts the text of § 1005.11(c)(2)(i) to its
state prior to its amendment by the 2016 Final Rule.
Section 1005.18 Requirements for Financial Institutions Offering Prepaid Accounts
18(a) Coverage
Section 1005.18(a) states that a financial institution shall comply with all applicable
requirements of EFTA and Regulation E with respect to prepaid accounts except as modified by
§ 1005.18. One of those generally applicable requirements concerns the issuance of access
devices in § 1005.5, which implements EFTA section 911.33 Prior to the 2016 Final Rule,
comment 18(a)-1 explained when a consumer was deemed to request an access device for a
33 15 U.S.C. 1693i.
24
payroll card account;34 a corresponding provision for government benefit accounts appeared in
§ 1005.15(b).35 In the 2016 Final Rule, the Bureau did not modify either of those provisions
except to add to comment 18(a)-1 two examples of when a consumer is deemed to request an
access device for a prepaid account.36
As discussed in the June 2017 Proposal, the Bureau received some questions about
application of § 1005.5 to prepaid accounts and believed that additional clarification may be
warranted. In particular, industry stakeholders had asked about how § 1005.5—which (along
with EFTA section 911) appears to have been drafted with a focus on providing access devices
for existing accounts where the consumer has means of accessing funds in the account other than
by using the access device—applies to certain prepaid accounts where there is no means of
access to the underlying funds other than via the prepaid card.37
Specifically, Regulation E provides that a financial institution may issue an access device
for an account to a consumer only when solicited to do so by the consumer pursuant to
§ 1005.5(a) (that is, in response to an oral or written request for the device, or as a renewal of, or
in substitution for, an accepted access device) or on an unsolicited basis in accordance with the
requirements set forth in § 1005.5(b). Section 1005.5(b) provides that a financial institution may
34 Comment 18(a)-1 stated that, consistent with § 1005.5(a) and except as provided, as applicable, in § 1005.5(b), a financial institution may issue an access device only in response to an oral or written request for the device, or as a renewal or substitute for an accepted access device. A consumer is deemed to request an access device for a payroll card account when the consumer chooses to receive salary or other compensation through a payroll card account. The 2016 Final Rule did not change this portion of the comment. 35 Section 1005.15(b) stated that a consumer is deemed to request an access device for a government benefit account when the consumer applies for government benefits that the agency disburses or will disburse by means of an EFT. In addition, it provided that the agency shall also verify the identity of the consumer by reasonable means before the device is activated. This provision was not changed by the 2016 Final Rule. 36 Specifically, the 2016 Final Rule added to comment 18(a)-1 an explanation that a consumer is deemed to request an access device for a prepaid account when, for example, the consumer acquires a prepaid account offered for sale at a retail location or applies for a prepaid account by telephone or online. 37 82 FR 29630, 29635 (June 29, 2017).
25
distribute an access device to a consumer on an unsolicited basis if the access device is (1) not
validated, meaning that the financial institution has not yet performed all the procedures that
would enable a consumer to initiate an EFT using the access device; (2) accompanied by a clear
explanation that the access device is not validated and how the consumer may dispose of it if
validation is not desired; (3) accompanied by the disclosures required by § 1005.7 of the
consumer’s rights and liabilities that will apply if the access device is validated; and (4) validated
only in response to the consumer’s oral or written request for validation, after the financial
institution has verified the consumer’s identity by a reasonable means.
The Bureau’s Proposal
As noted above, the Bureau received questions from industry about how the unsolicited
issuance rules set forth in § 1005.5(b) apply to prepaid accounts used for making disbursements
where the consumer is given no other option but to receive the disbursement via a prepaid
account, such as prison release cards, jury duty cards, and certain types of refund cards.
Specifically, the concern stemmed from § 1005.5(b)(2), which requires the financial institution
to provide a clear explanation that the access device is not validated and how the consumer may
dispose of it if validation is not desired. Industry stakeholders expressed concern that this
requirement could be interpreted to mean, in the prepaid context, that they must provide another
option by which consumers can receive their funds, despite the Bureau’s decision at the time of
the 2016 Final Rule not to extend the compulsory use prohibition in § 1005.10(e)(2) to other
types of prepaid accounts beyond payroll card accounts and government benefit accounts.38
Industry stakeholders explained that costs related to providing an additional payment option,
38 81 FR 83934, 83985 (Nov. 22, 2016).
26
such as a paper check, would threaten the financial viability of these generally temporary,
limited-use products and potentially cause unbanked consumers to incur check cashing fees to
access their funds if these products were eliminated in favor of paper checks. One issuing bank
stated that it issues prepaid accounts for use by prisons in work release programs, where the
account holds funds for use by an incarcerated individual to pay for transportation, food, or
incidentals related to participation in the work release program. The bank explained that, if these
funds were disbursed in any other manner (such as in cash), the prison would not be able to
ensure that they were used only for approved purposes.
As it stated in the June 2017 Proposal, the Bureau did not intend application of the
unsolicited issuance requirements to mandate that consumers be offered other options to receive
payments in circumstances beyond those already addressed by the compulsory use prohibition.39
The Bureau proposed to clarify application of the unsolicited issuance rules to prepaid
accounts where the consumer is not offered any other options by which to receive a disbursement
of funds. Specifically, in order to make clear that § 1005.5(b)(2) does not require a financial
institution or other party to offer consumers other options to receive such disbursements, the
Bureau proposed to add to comment 18(a)-1 a statement that, if an access device for a prepaid
account is provided on an unsolicited basis where the prepaid account is used for disbursing
funds to a consumer, and the financial institution or third party making the disbursement does not
39 82 FR 29630, 29636 (June 29, 2017). EFTA section 913(2), as implemented in § 1005.10(e)(2), provides that no financial institution or other person may require a consumer to establish an account for receipt of EFTs with a particular institution as a condition of employment or receipt of a government benefit. Existing comment 10(e)(2)-1 explains that an employer (including a financial institution) may not require its employees to receive their salary by direct deposit to any particular institution. These provisions regarding compulsory use predate the addition of the payroll card provisions in current § 1005.18 to Regulation E. In the 2016 Final Rule, the Bureau added a parallel comment (comment 10(e)(2)-2) for clarity regarding the application of the compulsory use prohibition to government benefit accounts. See 81 FR 83934, 93983-85 (Nov. 22, 2016).
27
offer any alternative means for the consumer to receive those funds in lieu of accepting the
prepaid account, in order to satisfy § 1005.5(b)(2), the financial institution must inform the
consumer that he or she has no other means by which to receive any funds in the prepaid account
if the consumer disposes of the access device.
Comments Received
Several industry commenters, including a trade association, an issuing bank, and a think
tank, supported the proposed modification to comment 18(a)-1. The issuing bank confirmed that
clarification was necessary because some entities had interpreted § 1005.5(b) to mean that, for
prepaid accounts where the device itself is the only means by which consumers can access their
funds, financial institutions would be required to provide another method of access. The issuing
bank also stated that the proposed modification would be especially helpful in connection with
prison work release programs and post-incarceration programs that use prepaid cards to help
address issues related to security, access to funds for both prisoners and parolees, and proper
monitoring of card usage. The issuing bank requested that the Bureau specify what information
financial institutions should include with the access device to alert consumers that there are no
other means by which to access their funds.
A consumer advocacy group stated that the proposed language did not account for refund
provisions that are commonly found in prison release card agreements and could lead to
consumer confusion. This commenter explained that most prison release card agreements allow
the consumer to obtain a replacement card if the card is lost or stolen and to access funds in the
account in a variety of ways, including by making an ATM withdrawal or requesting the
issuance of a check. The commenter expressed concern that consumers might interpret the
proposed disclosure to mean they have no ability to obtain the funds in their accounts other than
28
by using the access device at the point of sale. This commenter also stated that, if a consumer
loses his or her card and wishes to withdraw the remaining balance of the account via an
alternative method, the financial institution should allow that, subject to reasonable identity
verification procedures. The commenter asserted that, as written, the proposed revision could be
read as prohibiting such a transaction. The commenter therefore suggested revisions to the
proposed language that it believed would both alert consumers to the importance of retaining the
physical card and clearly convey information about alternate methods consumers can use to
access their funds.
Consumer advocates and industry commenters also requested that the Bureau make
modifications to Regulation E’s compulsory use prohibition governing payroll card accounts and
government benefit accounts. Specifically, the consumer advocates suggested extending the
compulsory use prohibition to other types of prepaid accounts, such as prison release cards, jury
duty cards, and certain other types of refund cards or, in the alternative, limiting the fees on cards
that are provided on an unsolicited basis. Regarding prison release cards in particular, they
urged the Bureau to consider a rulemaking or exercise of its authority under title X of the Dodd-
Frank Act to prohibit unfair, deceptive, or abusive acts or practices (UDAAP) to specifically
address concerns related to these accounts. On the other hand, a trade association cautioned that
an expanded compulsory use prohibition would threaten the viability of these types of prepaid
accounts. Another trade association urged the Bureau to refrain from exercising its UDAAP
authority without first obtaining more information about the types of programs that do not allow
for consumer choice and without providing additional guidance to the public about what could be
construed as a UDAAP. An issuing bank requested an exception from the existing compulsory
29
use prohibition for government benefit accounts that mirrors what currently exists for payroll
card accounts in emergency situations.
The Final Rule
For the reasons set forth herein, the Bureau is finalizing the revisions to comment 18(a)-1
generally as proposed, with one modification discussed below. The Bureau continues to believe
that, for prepaid accounts where an alternative means for a consumer to receive the funds in the
account is not offered, it is reasonable for the disclosure required by § 1005.5(b)(2) to include a
statement explaining that there is no other way for the consumer to receive his or her funds if the
consumer disposes of the access device. However, based on the comments received, the Bureau
understands that the proposed wording of the revision could have caused confusion as to whether
the access device is the only means to access funds being disbursed via the prepaid account
initially or whether using the access device is the only way to access the funds until the account
balance is exhausted. Therefore, the Bureau is adopting the comment with a revision to make
clear that the financial institution must inform the consumer that the consumer has no other
means by which to initially receive the funds in the prepaid account other than by accepting the
access device, as well as the consequences of disposing of the access device. The Bureau
believes this clarification will resolve any potential confusion related to the disclosure required
by § 1005.5(b)(2) for prepaid accounts lacking consumer choice.
The Bureau does not believe it is necessary to require, as part of the § 1005.5(b)
disclosure, that financial institutions provide a list of other means of access to funds that are
deposited in a prepaid account or to disclose procedures for replacing a lost or stolen access
device. The Bureau understands that financial institutions often encourage consumers to review
the terms and conditions of their prepaid accounts to learn about other methods, if any, by which
30
they can access their funds, and expects industry will continue doing so. The Bureau also notes
that any methods of accessing funds for a fee must be included in the long form disclosure
pursuant § 1005.18(b)(4), and that financial institutions are permitted to include information
about free services and features in the long form disclosure as well. Regarding the comment
requesting that the Bureau provide specific language that financial institutions must include with
the prepaid account device to alert consumers that there are no other means by which to access
their funds, the Bureau does not believe it would be appropriate to further prescribe specific
language as it expects that nature of the disclosure will vary from institution to institution based
on their particular circumstances.
Commenters’ requests related to Regulation E’s compulsory use prohibition more
generally are outside the scope of this rulemaking, and thus the Bureau is not making any such
changes at this time. The Bureau notes that to the extent prepaid accounts are used to disburse
consumers’ wages or covered government benefits, as defined under applicable law, such
accounts are already covered by § 1005.10(e)(2) and will continue to be so under the Prepaid
Accounts Rule. The Bureau notes further that it is continuing to monitor financial institutions’
and other persons’ practices relating to consumers’ choice of how to receive funds due to them in
various circumstances (including with respect to prepaid accounts that are not subject to the
compulsory use prohibitions). Depending on the facts and circumstances, the Bureau may
consider whether exercise of the Bureau’s authority under title X of the Dodd-Frank Act,
including its authority over unfair, deceptive, or abusive acts or practices, would be appropriate.
18(b) Pre-Acquisition Disclosure Requirements
The Prepaid Accounts Rule generally requires a financial institution to provide a
consumer with both a “short form” and a “long form” disclosure before the consumer acquires a
31
prepaid account. The Bureau adopted those pre-acquisition disclosure requirements pursuant to
EFTA sections 904(a), (b), and (c), 905(a), and 913(2),40 and section 1032 of the Dodd-Frank
Act,41 and adjusted the timing and fee disclosure requirements as well as required disclosure
language pursuant to EFTA section 904(c). As discussed in the section-by-section analyses that
follow, the Bureau is modifying several discrete aspects of the pre-acquisition disclosure
requirements to facilitate compliance and reduce burden.
18(b)(1) Timing of Disclosures
18(b)(1)(i) General
Section 1005.18(b)(1)(i) requires a financial institution to provide the short form and long
form disclosures required by § 1005.18(b) before a consumer acquires a prepaid account; an
alternative timing regime exists for prepaid accounts acquired in retail locations or acquired
orally by telephone, as described in § 1005.18(b)(1)(ii) and (iii), respectively.
As discussed in the 2016 Final Rule, the Bureau believed that consumers would benefit
from receiving both the short form and long form disclosures in writing prior to acquisition
because the disclosures serve different but complementary goals. The Bureau believed that the
pre-acquisition disclosures would limit the ability of financial institutions to obscure key fees as
well as allow consumers to better comparison shop among products. Even in situations where
the consumer might not easily be able to comparison shop, such as when students are offered a
card by their university, the Bureau believed that receiving the short form and long form
disclosures pre-acquisition would allow consumers to better understand the product’s terms
before deciding whether to accept it and also could inform the way in which consumers decide to
40 15 U.S.C. 1693b(a), (b), and (c), 1693c(a), and 1693k(2). 41 12 U.S.C. 5532.
32
use the product once acquired. Relatedly, the Bureau believed that because consumers often use
their prepaid accounts for an extended period, whatever disclosure information a consumer used
when selecting the prepaid account could have a significant and potentially long-term impact.42
The Bureau’s Proposal
Through its outreach efforts to industry regarding implementation, the Bureau received
some questions about what it means to provide disclosures “pre” acquisition for products where
the party making the disbursement to the consumer (or the financial institution) does not offer
any alternative means for the consumer to receive those funds. (For further discussion of such
products, see the section-by-section analysis of § 1005.18(a) above.) For example, if a refund
card is sent by mail, industry stakeholders asked whether the financial institution would have to
first mail the pre-acquisition disclosures to the consumer and then later send the card. The
Bureau also heard concerns regarding certain in-person acquisition scenarios, such as with prison
release or jury duty cards, although pre-acquisition disclosures could be provided more easily in
advance of the consumer receiving the prepaid account in such cases.
The Bureau continues to believe that the disclosures required by § 1005.18(b) are
important for consumers to receive for all prepaid products, and does not believe exclusions for
certain types of products would be appropriate. However, as explained in the June 2017
Proposal, the Bureau did not intend to require that an additional separate formal step for
disclosure delivery be added to the acquisition process for products where consumers are not
making a choice as to whether to acquire the prepaid account. The Bureau did not believe that
sending or otherwise providing the disclosures separately for prepaid accounts in this situation
42 81 FR 83934, 84017, 84022 (Nov. 22, 2016).
33
would be beneficial to consumers and acknowledged that, particularly if separate mailings were
made, financial institutions could incur additional costs in delivering the pre-acquisition
disclosures separately from the prepaid account itself.
The Bureau therefore proposed revisions to § 1005.18(b)(1)(i) and related commentary to
clarify the timing requirements for delivery of pre-acquisition disclosures in this situation.
Specifically, the Bureau proposed to add to the regulatory text of § 1005.18(b)(1)(i) a statement
that, when a prepaid account is used for disbursing funds to a consumer, and the financial
institution or third party making the disbursement does not offer any alternative means for the
consumer to receive those funds in lieu of accepting the prepaid account, the disclosures required
by § 1005.18(b) may be provided at the time the consumer receives the prepaid account. The
Bureau also proposed to add an example, as comment 18(b)(1)(i)-1.ii, to illustrate such a
scenario involving a utility company that refunds consumers’ initial deposits for its utility
services via prepaid accounts delivered to consumers by mail. In addition, the Bureau proposed
to renumber the paragraphs within comment 18(b)(1)(i)-1 for clarity.
Comments Received
Several industry trade associations and a think tank commented in support of the
proposed revisions to § 1005.18(b)(1)(i). One of the trade associations stated that, in situations
where the only method to disburse funds is via a prepaid account, requiring the financial
institution (or third party) to send the pre-acquisition disclosures separately from the access
device offers consumers no benefit or protection and could instead harm consumers by delaying
access to their funds. The Bureau received no comments opposing this aspect of the proposal.
34
The Final Rule
For the reasons set forth herein, the Bureau is finalizing the revisions to
§ 1005.18(b)(1)(i) and comment 18(b)(1)(i)-1 as proposed. As discussed above and in the 2016
Final Rule, the Bureau continues to believe that consumers will benefit from receiving both the
short form and long form disclosures in writing prior to prepaid account acquisition because the
disclosures serve different but complementary goals.43 However, as discussed above, the Bureau
did not intend to require that an additional separate formal step for disclosure delivery be added
to the acquisition process for products where consumers are not making a choice as to whether to
acquire the prepaid account and remains concerned about the potential additional costs for
financial institutions balanced against limited benefits to consumers.
The Bureau is therefore finalizing § 1005.18(b)(1)(i) to make clear that, when a prepaid
account is used for disbursing funds to a consumer, and the financial institution or third party
making the disbursement does not offer any alternative means for the consumer to receive those
funds in lieu of accepting the prepaid account, the disclosures required by § 1005.18(b) may be
provided at the time the consumer receives the prepaid account. Pursuant to this change, the
financial institution or third party is not required to first mail or otherwise deliver the disclosures
and then later provide the card.
The Bureau notes that the accommodation in final § 1005.18(b)(1)(i) does not apply to
payroll card accounts and government benefit accounts because they are subject to the
compulsory use prohibition in § 1005.10(e)(2). Comments 15(c)-1 and 2 and final comment
18(b)(1)(i)-1.i.B address the timing of pre-acquisition disclosures for such accounts.
43 Id.
35
18(b)(1)(ii) Disclosures for Prepaid Accounts Acquired in Retail Locations
Section 1005.18(b)(1)(ii) states that a financial institution is not required to provide the
long form disclosure required by § 1005.18(b)(4) before a consumer acquires a prepaid account
in person at a retail location provided certain conditions are met. Specifically, these conditions
are: (A) the prepaid account access device must be contained inside the packaging material; (B)
the short form disclosure required by § 1005.18(b)(2) must be provided on or visible through an
outward-facing, external surface of the access device’s packaging material; (C) the short form
disclosure must include the information set forth in § 1005.18(b)(2)(xiii) that allows a consumer
to access the information required to be disclosed in the long form by telephone and via a
website; and (D) the long form disclosure must be provided after the consumer acquires the
prepaid account.
As discussed in the 2016 Final Rule and as noted above, the Bureau believed that
consumers would benefit from receiving both the short form and long form disclosures in writing
prior to acquisition because the disclosures serve different but complementary goals. However,
the Bureau was cognizant of the potentially significant cost to industry related to providing the
long form disclosure prior to acquisition at retail and making packaging adjustments necessary to
accommodate such a disclosure given the space constraints for products sold at retail. The
Bureau thus finalized the retail location exception in § 1005.18(b)(1)(ii), which it believed struck
the appropriate balance between providing consumers with—or access to—important disclosures
before acquiring a prepaid account while recognizing the packaging, space, and other constraints
faced by financial institutions when selling prepaid accounts at retail.44
44 Id. at 84022.
36
Specifically, in the 2016 Final Rule, the Bureau explained that it was adopting
§ 1005.18(b)(1)(ii)(D) to make clear that, to qualify for the retail location exception, a financial
institution must provide the long form disclosure after the consumer acquires the prepaid
account. The Bureau noted that this provision does not set forth a specific time by which the
long form disclosure must be provided after acquisition, but explained that, in practice, it
expected that compliance with this requirement would typically be accomplished in conjunction
with § 1005.18(f)(1), which requires a financial institution to provide, as part of its initial
disclosures given pursuant to § 1005.7, all of the information required to be disclosed pursuant to
§ 1005.18(b)(4).45 The financial institution must make the initial disclosures required by
§ 1005.7 at the time a consumer contracts for an EFT service or before the first EFT is made
involving the account. That is, standing alone, § 1005.18(f)(1) does not require inclusion in the
initial disclosures of the long form in accordance with the form and formatting requirements set
forth in § 1005.18(b)(6) and (7); rather, it only requires that the § 1005.18(b)(4) information be
included in the initial disclosures.
The Bureau’s Proposal
During the Bureau’s outreach efforts to industry regarding implementation, a trade
association told the Bureau that providing the long form disclosure—in accordance with the form
and formatting requirements set forth in § 1005.18(b)(6) and (7)—as part of the initial
disclosures for the prepaid account contained inside the packaging material for prepaid accounts
sold at retail may pose problems for financial institutions. The trade association explained that,
for at least some institutions, this requirement might necessitate a substantial increase in the size 45 Id. In the 2014 Proposal, proposed § 1005.18(f) would have required, in part, that a financial institution include all of the information required to be disclosed in the long form and be provided in a form substantially similar to the sample form in proposed Appendix A-10(e). See id. at 84114.
37
of the packages in order to accommodate the long form disclosure, thus requiring retooling of
their “J-hook” packaging. Because the 2016 Final Rule did not specify the method by which the
long form disclosure must be provided pursuant to § 1005.18(b)(1)(ii)(D), the trade association
said that financial institutions might resort to sending the long form disclosure to the consumer
by mail to avoid increasing the size of retail packaging to accommodate the disclosure. The
trade association also asked whether the long form disclosure could be provided electronically
without E-Sign consent, similar to the transitional accommodation in § 1005.18(h)(2)(iv) for
providing certain notices to consumers.
In light of these concerns, the Bureau proposed to revise § 1005.18(b)(1)(ii)(D) to state
that, if a financial institution does not provide the long form disclosure inside the prepaid account
packaging material, and it is not otherwise already mailing or delivering to the consumer written
account-related communications within 30 days of obtaining the consumer’s contact information,
it may provide the long form disclosure in electronic form without regard to the consumer notice
and consent requirements of section 101(c) of the E-Sign Act. That is, this accommodation
would only be available to financial institutions that are not otherwise mailing or delivering
written account-related communications to the consumer post-acquisition. The Bureau also
proposed to add language to comment 18(b)(1)(ii)-4 that would explain that a financial
institution that has not obtained the consumer’s contact information is not required to comply
with the requirements set forth in proposed § 1005.18(b)(1)(ii)(D). A financial institution is able
to contact the consumer when, for example, it has the consumer’s mailing address or email
address.
38
Comments Received
Several industry commenters, including trade associations, an issuing bank, and a think
tank, supported the proposed revisions to § 1005.18(b)(1)(ii)(D). Two trade associations and the
issuing bank stated that the proposed revisions would also afford financial institutions some
flexibility without increasing costs or harming consumers. These commenters argued that
increasing the size of packaging material for prepaid accounts sold at retail, or alternatively
separately mailing the long form disclosure to the consumer, would impose significant costs on
industry and offer little if any consumer benefit, given that consumers will already have access to
the information on the long form disclosure by telephone and via a website and that such
information will also be included in the initial disclosures. Another trade association stated that
providing the long form disclosure inside the prepaid card packaging might not always be
feasible because space constraints would require financial institutions to increase the size of the
packaging, which could in turn necessitate retail locations to adjust their displays to
accommodate the larger packaging.
A group of consumer advocates opposed the proposed revisions to § 1005.18(b)(1)(ii)(D)
because, they argued, the result would be that consumers who may not be able to receive
electronic communications may never receive the long form disclosure. They also asserted that
the retail packaging constraints are not a significant issue, stating that many prepaid cards sold
via “J-hook” displays already contain printed material that can accommodate the long form
disclosure. In response to the Bureau’s request for comment on whether a similar modification
to § 1005.18(b)(1)(iii)(C) is necessary for prepaid accounts acquired orally by telephone, these
commenters agreed with the Bureau’s initial assessment that E-Sign consent should not be
39
waived for accounts acquired by telephone because consumers can easily receive the long form
disclosure by mail (with their access device) or can consent to electronic communications.
The Final Rule
For the reasons set forth herein, the Bureau is finalizing the revisions to
§ 1005.18(b)(1)(ii)(D) and comment 18(b)(1)(ii)-4 as proposed. As noted above and in the 2016
Final Rule, the Bureau was aware of the potential significant costs to industry related to the
requirement to provide the long form disclosure prior to acquisition at retail and thus finalized
the retail location exception in § 1005.18(b)(1)(ii).46 Based on information received through the
Bureau’s implementation outreach to industry and in comments on the June 2017 Proposal, the
Bureau believes that adding this additional accommodation to the exception is warranted to
avoid increased costs and is therefore finalizing § 1005.18(b)(1)(ii)(D) to allow a financial
institution to provide the long form disclosure electronically without E-Sign consent, if it does
not already provide the long form disclosure inside the prepaid account packaging material, and
it is not otherwise already mailing or delivering written account-related communications.
The Bureau requested comment on a number of specific questions about financial
institutions’ processes and plans for providing the long form disclosure to consumers and
whether the Bureau could make other accommodations regarding the retail location exception to
facilitate the inclusion of the long form disclosure inside the packaging.47 The Bureau did not
receive any information in response that suggested alternative methods of managing the cost
concerns discussed in the proposal. The Bureau recognizes the concerns raised by the group of
consumer advocates, but believes it is nonetheless appropriate to make this modification as
46 Id. at 84022. 47 See 82 FR 29630, 29638 (June 29, 2017).
40
proposed in light of the concerns raised by industry, described above, that led the Bureau to
include this modification in the June 2017 Proposal and echoed in industry’s general comments
on this aspect of that proposal.
Under this final rule, even consumers who do not have access to electronic
communications will nonetheless continue to receive the important information about their
prepaid accounts, even though it may not be in the format the Bureau believed would be most
beneficial to consumers. For example, consumers will still receive the information required to be
disclosed in the long form via the initial disclosures required by §§ 1005.7 and 1005.18(f)(1),
which are typically provided inside the packaging of prepaid accounts sold at retail. In addition,
financial institutions cannot avail themselves of this new accommodation if they are mailing or
delivering any account-related communications (such as sending to the consumer an access
device embossed with the consumer’s name) within 30 days of obtaining the consumer’s contact
information. In that instance, the financial institution must include the long form disclosure, in
accordance with the form and formatting requirements set forth in § 1005.18(b)(6) and (7),48 in
that mailing (or in a separate mailing); they are not permitted to provide it electronically without
E-Sign consent.49 Financial institutions that sell GPR cards at retail typically mail to consumers
a card embossed with their names following successful completion of the identification and
verification process. The Bureau thus believes that most consumers who successfully verify
their GPR card accounts will receive the long form disclosure as part of that mailing.
48 The form and formatting requirements in § 1005.18(b)(6) and (7) require, among other things, that the long form disclosure be presented in the form of a table, appear in a minimum type size of eight points, be segregated from other information, and contain only information that is required or permitted for that disclosure. 49 If the financial institution includes the long form disclosure inside the prepaid account packaging material, it does not need this E-Sign waiver. Likewise, if a consumer gives E-Sign consent, the financial institution may provide the disclosure electronically even if it is mailing or delivering to the consumer written account-related communications within 30 days of obtaining the consumer’s contact information.
41
The Bureau did not receive any requests to adopt a similar modification to
§ 1005.18(b)(1)(iii)(C) for prepaid accounts acquired orally by telephone, and thus is not making
any changes to that provision. As explained in the June 2017 Proposal, the Bureau does not
believe that such a modification is necessary because, in this situation, financial institutions
would already be mailing an access device and initial disclosures to consumers and, unlike “J-
hook” packaging, the Bureau does not believe, nor did commenters assert, that mailing would
face the same space constraints.50
The Bureau is renumbering comment 18(b)(1)(iii)-2, regarding disclosures for prepaid
accounts acquired by telephone, as comment 18(b)(6)(i)(C)-1 and making certain revisions
thereto. See the section-by-section analysis of § 1005.18(b)(6)(i) below for further details.
In addition, the Bureau is also making certain technical corrections in § 1005.18(b)(1)(ii)
and related commentary. Specifically, the Bureau is correcting grammar and typographical
errors in § 1005.18(b)(1)(ii) (changing “disclosures” to “disclosure”, “are” to “is”, and “include”
to “includes”)51 and in the last sentence of comment 18(b)(1)(ii)-2 (changing “disclosures” to
“disclosure”).
18(b)(2) Short Form Disclosure Content
18(b)(2)(ix) Disclosure of Additional Fee Types
The Prepaid Accounts Rule’s provisions governing the short form require disclosure of
certain “static” fees that are relatively common across the industry as well as disclosure of
certain additional types of fees that the financial institution may charge with respect to a
50 82 FR 29630, 29638 (June 29, 2017). 51 The proposed text of § 1005.18(b)(1)(ii)(D) also included similar corrections in the first sentence (changing “disclosures” to “disclosure” and “are” to “is”), which the Bureau is finalizing.
42
particular prepaid account program. Specifically, § 1005.18(b)(2)(ix) requires a financial
institution to disclose the two fee types that generate the highest revenue from consumers for the
prepaid account program or across prepaid account programs that share the same fee schedule
during the time period provided in § 1005.18(b)(2)(ix)(D) and (E), subject to certain exclusions,
including a de minimis threshold. If an additional fee type required to be disclosed has two fee
variations, the 2016 Final Rule’s version of § 1005.18(b)(2)(ix)(C) requires the financial
institution to disclose the name of the additional fee type along with the names of the two fee
variations and the fee amounts; if an additional fee type has more than two fee variations, the
financial institution must disclose the name of the additional fee type and the highest fee amount
in accordance with § 1005.18(b)(3)(i).52 Comment 18(b)(2)(ix)(C)-1 provides examples
illustrating how to disclose two-tier fees and other fee variations in additional fee types.
As discussed in the 2016 Final Rule, the Bureau believed that it was important for
financial institutions to disclose to consumers certain fee types not included in the static fees list.
The Bureau believed that disclosing additional fee types would create a dynamic disclosure
while reducing incentives for manipulating fee structures by, for example, lowering the amount
of the static fees in favor of higher fees on fee types incurred less often, thus hiding potential
costly charges. The Bureau also believed that putting consumers on notice of such additional fee
types would alert them to account features for which they may end up incurring a significant
expense. In addition, the Bureau believed that eschewing full standardization in a static short
form disclosure in favor of the dynamic disclosure of additional fee types would enable the
disclosure to capture market changes and innovations. Furthermore, the Bureau believed that the
52 Section 1005.18(b)(2)(ix)(C) contains modified requirements for disclosing additional fee types on a short form disclosure for multiple service plans pursuant to § 1005.18(b)(6)(iii)(B)(2).
43
requirement to disclose additional fee types would allow the short form to reflect the advent of
new fee types that consumers may come to incur frequently and for significant cost that
otherwise would be prohibited from disclosure in the short form and thus could render it
outdated and of diminished value to consumers over time.53
The Bureau’s Proposal
Through its outreach efforts to industry regarding implementation, the Bureau heard
concerns about the requirement to disclose the highest fee (accompanied by an asterisk
indicating the fee may be lower depending on how and where the card is used) for additional fee
types with more than two fee variations, where one of those fee variations is significantly higher
than the others; this may occur, for example, with expedited delivery of a replacement card or a
bill payment. Because the 2016 Final Rule’s version of § 1005.18(b)(2)(ix)(C) did not allow
financial institutions to disclose fee variations within additional fee types when the additional fee
type has more than two variations, some industry stakeholders suggested that, rather than
disclosing the highest fee in these situations, financial institutions were considering eliminating
the service for which that highest fee is charged so as to avoid having to disclose it without
additional explanation on the short form.
In response to these concerns, the Bureau proposed to modify § 1005.18(b)(2)(ix)(C) by
providing that, for disclosures other than for multiple service plans, a financial institution may,
but is not required to, consolidate the fee variations into two categories and disclose the names of
those two fee variation categories and the fee amounts in a format substantially similar to that
used to disclose the two-tier fees required by § 1005.18(b)(2)(v) (ATM balance inquiry fees) and
53 81 FR 83934, 84041 (Nov. 22, 2016).
44
(vi) (customer service fees) and in accordance with § 1005.18(b)(3)(i) and (b)(7)(ii)(B)(1). The
Bureau also proposed to revise comment 18(b)(2)(ix)(C)-1.ii to illustrate the two options that a
financial institution would have to disclose an additional fee type with more than two fee
variations. Specifically, proposed comment 18(b)(2)(ix)(C)-1.ii would provide the following
example: A financial institution offers two methods of bill payment—via ACH and paper
check—and offers two modes of delivery for bill payments made by paper check—regular
standard mail service and expedited delivery. The financial institution charges $0.25 for bill pay
via ACH, $0.50 for bill pay via paper check sent by regular standard mail service, and $3 for bill
pay via paper check sent via expedited delivery. The financial institution must calculate the total
revenue generated from consumers for all methods of bill pay and all modes of delivery during
the required time period to determine whether it must disclose bill payment as an additional fee
type pursuant to § 1005.18(b)(2)(ix). Because there are more than two fee variations for the fee
type “bill payment,” if bill payment is required to be disclosed as an additional fee type pursuant
to § 1005.18(b)(2)(ix)(A), the financial institution has two options for the disclosure. The
financial institution may disclose the highest fee, $3, followed by a symbol, such as an asterisk,
linked to a statement explaining that the fee could be lower depending on how and where the
prepaid account is used, pursuant to § 1005.18(b)(3)(i). Thus, the financial institution would
disclose on the short form the fee type as “Bill payment” and the fee amount as “$3.00*”.
Alternatively, the financial institution may consolidate the fee variations into two categories,
such as regular delivery and expedited delivery. In this case, the financial institution would
make this disclosure on the short form as: “Bill payment (regular or expedited delivery)” and the
fee amount as “$0.50* or $3.00”.
45
Comments Received
Several industry commenters, including a trade association and an issuing bank,
supported the proposed revisions to § 1005.18(b)(2)(ix)(C), stating that the changes would
provide needed flexibility to this aspect of the Prepaid Accounts Rule’s disclosure requirements.
In addition, the issuing bank stated that the proposed revisions would allow financial institutions
to provide clearer information about additional fee types, as well as better information about
lower fee options that consumers would find useful. No commenters opposed this aspect of the
proposal.
The Final Rule
For the reasons set forth herein, the Bureau is finalizing the revisions to
§ 1005.18(b)(2)(ix)(C) and comment 18(b)(2)(ix)(C)-1.ii as proposed. The Bureau believes it is
appropriate to give financial institutions additional flexibility to provide more detail about
additional fee types with multiple fee variations, even though it could add some additional
complexity to the short form. Although the Bureau believes that consumers generally will
benefit from simplified fee structures, allowing for some flexibility with respect to additional fee
types will provide consumers more information about a prepaid account prior to acquisition and
will hopefully incentivize financial institutions to keep services that are useful for consumers and
that they may have otherwise eliminated if this requirement had remained unchanged. The
Bureau acknowledged in the June 2017 Proposal that allowing financial institutions to avail
themselves of this alternative could reduce the amount of “white space” on the short form
disclosure, which the Bureau has stated is paramount to clarity and consumer comprehension.54
54 82 FR 29630, 29639 (June 29, 2017); see also 81 FR 83934, 84024-25 (Nov. 22, 2016).
46
However, the Bureau believes that the reduction here would be minimal, particularly when
contrasted with the potential diminished benefit to consumers of financial institutions eliminating
certain relatively expensive but beneficial features, such as expedited card replacement or bill
pay.
The Bureau notes that it expects that, if the three or more fee variations cannot be
consolidated into two categories in a logical manner, or if doing so would cause consumer
confusion, the financial institution must disclose the name of the additional fee type and the
highest fee amount in the manner that was required under the 2016 Final Rule, rather than avail
itself of the new alternative.
In addition, the Bureau is revising dates in the regulatory text and headings in
§ 1005.18(b)(2)(ix) to reflect the new overall effective date of the Prepaid Accounts Rule
adopted in this final rule, as discussed in detail in part VI below. Section 1005.18(b)(2)(ix)(D)
describes the timing requirements for the initial assessment of an additional fee types disclosure,
and § 1005.18(b)(2)(ix)(E) describes the timing for the periodic reassessment and update of
additional fee types disclosures. The Bureau is revising dates in § 1005.18(b)(2)(ix)(D) and in
commentary accompanying § 1005.18(b)(2)(ix)(D)(1) and (2), and (E)(2) and (3), including the
headings, to reflect the new April 1, 2019 effective date. The Bureau is not, however, changing
the October 1, 2014 date in § 1005.18(b)(2)(ix)(D)(1) and related commentary, which is the
beginning of the time frame for which financial institutions may calculate additional fee types to
disclose, so as not to impose additional burden on financial institutions that have already
prepared their additional fee types calculations in reliance on that date.
The Bureau is also making certain technical corrections in § 1005.18(b)(2)(ix) and related
commentary. Specifically, the Bureau is adjusting terminology for consistency with other
47
portions of the regulatory text and commentary in the heading for § 1005.18(b)(2)(ix)(D)
(changing “additional fee type” to “additional fee types”) and in comment 18(b)(2)(ix)(E)(4)-1
(changing “update additional fee types disclosures” to “update the additional fee types
disclosure” and “listing of the additional fee types disclosures” to “listing of the additional fee
types”). The Bureau is also correcting grammar and typographical errors in
§ 1005.18(b)(2)(ix)(E)(2) through (4) (changing “disclosures” to “disclosure” and “additional fee
types disclosures” to “an additional fee types disclosure”) and in comments 18(b)(2)(ix)(A)-5.i
(changing “disclose” to “disclosed”) and 18(b)(2)(ix)(E)(2)-1 (changing “disclosures” to
“disclosure”).
18(b)(6) Form of Pre-Acquisition Disclosures
18(b)(6)(i) General
Section 1005.18(b)(6)(i) states that the pre-acquisition disclosures required by
§ 1005.18(b) must be provided in writing, except in certain circumstances where they must be
provided electronically or orally by telephone pursuant to § 1005.18(b)(6)(i)(B) and (C),
respectively. Specifically, the 2016 Final Rule’s version of § 1005.18(b)(6)(i)(B) provides, in
part, that these disclosures must be provided in electronic form when a consumer acquires a
prepaid account through electronic means, including via a website or mobile application, and
must be viewable across all screen sizes. The 2016 Final Rule’s version of § 1005.18(b)(6)(i)(C)
provides, in part, that the disclosures required by § 1005.18(b)(2) and (5) must be provided orally
when a consumer acquires a prepaid account orally by telephone as described in
§ 1005.18(b)(1)(iii).
As explained in the 2016 Final Rule, although the Bureau believed that consumers can
best review the terms of a prepaid account before acquiring it when seeing the terms in written
48
form, the Bureau recognized that in certain situations, it is not practicable to provide written
disclosures. With respect to electronic disclosures, the Bureau believed it was important for
consumers who decide to go online to acquire prepaid accounts to see the relevant disclosures for
that prepaid account in electronic form. Furthermore, regarding oral disclosures, the Bureau
believed that when, for example, a consumer acquires a prepaid account orally by telephone, it
would not be practicable for a financial institution to provide these disclosures in written form;
however, the Bureau believed that consumers should nonetheless have the benefit of these pre-
acquisition disclosures.55
The Bureau’s Proposal
Through its outreach efforts to industry regarding implementation, the Bureau heard
concerns from an issuing bank that it would actually be more practicable and convenient to
provide the short form and long form disclosures required by § 1005.18(b) in writing rather than
electronically or orally for certain payroll card accounts and government benefit accounts. The
issuing bank explained that, in these situations under existing practice today, consumers first
receive disclosures in writing from the employer or agency; in order to actually acquire the
account, consumers either go online or call a customer service line. The issuing bank also
expressed concern about the cost to some employers and agencies to train their customer service
representatives to provide disclosures orally by telephone or to update their websites to
accommodate the requirements set forth in the 2016 Final Rule for electronic disclosures,
particularly when written disclosures are already being provided under existing practice to the
consumer in advance of acquisition.
55 81 FR 83934, 84075-77 (Nov. 22, 2016).
49
In light of these concerns, the Bureau proposed to revise § 1005.18(b)(6)(i)(B) and (C)
and comment 18(b)(6)(i)(B)-1 to make clear that financial institutions are permitted to provide
written disclosures prior to acquisition rather than having to give the disclosures electronically or
orally by telephone. The Bureau also proposed to add new comment 18(b)(6)(i)-1 to illustrate
this proposed revision in the payroll card account context. Specifically, the proposed comment
would have given an example stating that, if an employer distributes to new employees printed
copies of the disclosures required by § 1005.18(b) for a payroll card account, together with
instructions to complete the payroll card account acquisition process online if the employee
wishes to be paid via a payroll card account, the financial institution is not required to provide
the § 1005.18(b) disclosures electronically via the website because the consumer has already
received the disclosures pre-acquisition in written form. The Bureau believed that the proposed
clarification would alleviate the concern described above without harm to consumers, because
the requirement to provide consumers with the disclosures before they agree to acquire a prepaid
account would remain.
Comments Received
Several industry commenters, including trade associations and an issuing bank, supported
the proposed changes to § 1005.18(b)(6)(i)(B) and (C) and related commentary. The issuing
bank stated that the proposed revisions would illustrate the value of printed materials and allow
financial institutions and third parties to leverage the existing practice of providing consumers
with a printed copy of the initial disclosures before asking whether they want to acquire the
prepaid account. One of the trade associations stated that printed disclosures are likely more
effective and accurate than oral disclosures (especially if they are lengthy) because consumers
would have more time to review them. Another trade association stated that providing
50
disclosures electronically or orally when they have already been provided in printed form would
be inconvenient, redundant, and costly and would provide little consumer benefit. This
commenter further stated that redundancies would burden the enrollment process and could
negatively impact employees’ perception of the payroll card option.
These commenters also offered a few suggested changes. Specifically, one of the trade
associations stated that the final rule should not use the term “written” to distinguish printed
disclosures from electronic disclosures because electronic disclosures are written disclosures, as
recognized by numerous regulations, including Regulation E. This commenter suggested that the
Bureau instead refer to the written disclosures as “printed” or “paper” disclosures, which it
believed would avoid any potential confusion. In addition, the issuing bank and another trade
association recommended modifying comments 18(b)(1)(iii)-1 and 2 to conform to the proposed
changes in § 1005.18(b)(6)(i)(B) and (C).56 The issuing bank also suggested renumbering
comment 18(b)(1)(iii)-2 as new comment 18(b)(6)(i)(C)-1 and inserting a clause at the beginning
of that new comment that mirrors the clause at the beginning of the first sentence of proposed
new comment 18(b)(6)(i)(B)-1.
The Bureau did not receive any comments opposing this aspect of the proposal.
The Final Rule
For the reasons set forth herein, the Bureau is finalizing the revisions to
§ 1005.18(b)(6)(i)(B) and (C) and comment 18(b)(6)(i)(B)-1 and adopting new comment
18(b)(6)(i)-1 as proposed. Final § 1005.18(b)(6)(i)(B) and (C) make clear that financial
56 Specifically, the issuing bank suggested revising comment 18(b)(1)(iii)-1 to clarify that § 1005.18(b)(1)(iii) applies only when a financial institution does not provide the long form disclosure before acquisition. The trade association suggested revising comment 18(b)(1)(iii)-2 by either referencing § 1005.18(b)(6)(i)(C) or specifically stating that the disclosures need not be provided orally if provided in written form prior to acquisition.
51
institutions are permitted to provide written disclosures prior to acquisition rather than having to
give the disclosures electronically or orally by telephone. The Bureau continues to believe it is
important for consumers to receive pre-acquisition disclosures via the method by which they
acquire a prepaid account. As noted above, however, the Bureau also believes that consumers
can best review the terms of a prepaid account before acquiring it when seeing the terms in
written form. The Bureau appreciates the concerns raised by commenters regarding providing
electronic or oral disclosures in this context, and believes that if written pre-acquisition
disclosures are provided, it is not necessary to also require electronic and oral disclosures.
In addition, as suggested by one of the commenters, the Bureau is modifying comment
18(b)(1)(iii)-2, renumbered as new comment 18(b)(6)(i)(C)-1, for consistency with final
§ 1005.18(b)(6)(i)(C). The Bureau does not believe a similar modification to comment
18(b)(1)(iii)-1 is necessary as the purpose of that comment is to illustrate when a prepaid account
is acquired orally by telephone; it does not discuss the disclosures required for accounts acquired
in that manner. Regarding the suggestion from one of the trade associations to refer to the
written disclosures as “printed” or “paper” disclosures, the Bureau notes that comment 18(b)-1
explains that because electronic disclosures need not meet the consumer consent or other
applicable provisions of the E-Sign Act, § 1005.18(b) addresses certain requirements for written
and electronic disclosures separately. This usage of the terms “written” and “electronic” is also
consistent with, for example, the periodic statement alternative that is currently in effect for
payroll cards under existing § 1005.18 as well as the modified version for prepaid accounts in the
2016 Final Rule. Therefore, the Bureau does not believe it is necessary to change the term
“written” disclosure to “printed” or “paper” disclosure and is concerned that doing so might
52
result in additional complexities in the rule and create confusion regarding other uses of the term
“written” in the Prepaid Accounts Rule.
The Bureau is also making technical corrections in the last sentence of
§ 1005.18(b)(6)(i)(C) to correct grammar and a cross-reference (changing “disclosures” to “the
disclosure” and “(b)(1)(ii)(B)” to “(b)(1)(ii)(C)”).
18(b)(9) Prepaid Accounts Acquired in Foreign Languages
Section 1005.18(b)(9)(i) requires a financial institution to provide the pre-acquisition
disclosures required by § 1005.18(b) in a foreign language if the financial institution uses that
same foreign language in connection with the acquisition of a prepaid account in certain
circumstances. Specifically, the financial institution must provide the disclosures in a foreign
language if it principally uses a foreign language on the prepaid account packaging material; it
principally uses a foreign language to advertise, solicit, or market a prepaid account and provides
a means in the advertisement, solicitation, or marketing material that the consumer uses to
acquire the prepaid account by telephone or electronically; or it provides a means for the
consumer to acquire a prepaid account by telephone or electronically principally in a foreign
language. Section 1005.18(b)(9)(ii) requires financial institutions providing the disclosures in a
foreign language pursuant to § 1005.18(b)(9)(i) to also provide the information required to be
disclosed in the long form pursuant to § 1005.18(b)(4) in English upon a consumer’s request and
on any part of the website where it discloses this information in a foreign language.
As discussed in the 2016 Final Rule, the Bureau believed that, if a financial institution
affirmatively targets consumers by advertising, soliciting, or marketing to them in a foreign
language, principally uses a foreign language on the interface that a consumer sees or uses to
initiate the process of acquiring a prepaid account, or provides a way for a consumer to acquire a
53
prepaid account in a foreign language, the financial institution is making a deliberate effort to
obtain the consumer’s business using a foreign language and therefore should be required to
provide the pre-acquisition disclosures in that foreign language. The Bureau believed that
requiring financial institutions to provide pre-acquisition disclosures in a foreign language is
appropriate in the circumstances described above to ensure that non- and limited-English
speaking consumers are able to understand the terms of a prepaid account prior to acquisition.57
The Bureau’s Proposal
During its outreach efforts to industry regarding implementation, the Bureau discussed
with an issuing bank its experiences with employers and government agencies that contract with
third parties to provide real-time oral language interpretation services in order to facilitate
general processes administered by the employer (such as new employee on-boarding) or agency
(enrollment in a benefits program), which may include acquisition of a prepaid account. The
issuing bank expressed concern that use of these language interpretation services, although
generally beneficial to affected consumers, may potentially present difficulties in providing
interpretations of the required disclosures to consumers in foreign languages, while also
increasing costs for the employer or agency due to longer call times.58
The issuing bank explained that these language interpretation services allow consumers
to choose from more than one hundred languages, though the employer or agency may not know
it will need interpretation services in a particular language until a consumer requests it. The
issuing bank emphasized that it is not involved in selecting the third parties providing language
interpretation services that employers and government agencies might use as part of their general
enrollment processes, and that the interpreters, who are hired to provide language interpretation
services only, may not have any particular experience with financial disclosures. The issuing
bank also stated that it would not be able to ensure that the long form disclosures, translated into
every possible foreign language that could be selected by a consumer, could be provided either
electronically (pursuant to § 1005.18(b)(1)(iii)(B)) or in writing (pursuant to
§ 1005.18(b)(1)(iii)(C)) to the consumer.
The Bureau thus proposed revisions to § 1005.18(b)(9)(i)(C) to provide an exception that
would cover the situation described above regarding language interpretation services.
Specifically, proposed § 1005.18(b)(9)(i)(C) would have stated that financial institutions must
provide the pre-acquisition disclosures in a foreign language in connection with the acquisition
of a prepaid account if the financial institution provides a means for the consumer to acquire a
prepaid account by telephone or electronically principally in a foreign language, except for
payroll card accounts and government benefit accounts where the foreign language is offered by
telephone only via a real-time language interpretation service provided by a third party.
Comments Received
Several industry commenters, including trade associations, an issuing bank, and a
program manager, supported the proposed revisions to § 1005.18(b)(9)(i)(C), stating that without
an exception for payroll card accounts and government benefit accounts acquired using a real-
time language interpretation service provided by a third party, the costs and compliance risk
associated with the Prepaid Accounts Rule’s foreign language requirement would cause entities
to stop offering certain foreign language services to the detriment of non- and limited-English
speaking consumers. The issuing bank and one of the trade associations asserted that the rule’s
original requirement would make compliance virtually impossible because government agencies
55
would have to anticipate all the languages that might be requested by consumers in order to
provide properly translated disclosures in accordance with the Prepaid Accounts Rule’s timing
requirements. A group of consumer advocates stated that they did not object to the narrow
exclusion proposed by the Bureau. The program manager urged the Bureau to extend the
proposed exception to all prepaid products.
In response to the Bureau’s request for comment regarding whether it should completely
exclude payroll card accounts or government benefit accounts from the § 1005.18(b)(9)(i)(C)
requirement, a trade association representing community banks argued that a complete exclusion
would be the only meaningful way to eliminate obstacles associated with having to provide
foreign language disclosures to payroll card and government benefit account holders. This
commenter asserted that community banks are not suited to finance, implement, manage, and
guarantee a third party’s ability to accurately interpret and provide real-time financial disclosures
pertaining to prepaid accounts, and that these issues exist regardless of who delivers the
disclosures. In contrast, the group of consumer advocates argued that payroll card accounts and
government benefit accounts should not have a categorical exclusion because employees and
government benefit recipients that are being solicited to open a payroll card account or
government benefit account in a foreign language should receive the pre-acquisition disclosures
in that language.
In response to the Bureau’s request for comment about whether there are other ways the
Bureau might address the issues related to language interpretation services explained above,
several of these commenters stated that the proposed exception in § 1005.18(b)(9)(i)(C) should
be expanded to include foreign language assistance offered by internal resources, not just third
parties. One of the trade associations also urged the Bureau to clarify that the
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§ 1005.18(b)(9)(i)(C) requirement would not be triggered if the financial institution does not
formally offer language interpretation services in connection with telephone acquisition of
prepaid accounts but an employee provides informal foreign language assistance during the
acquisition process, because in this case, the financial institution is not affirmatively targeting the
consumer in a foreign language. It explained that language interpretation for onboarding
employees and enrolling consumers in payroll card or government benefit programs is not
always performed by a third party, and that employees occasionally use their language skills to
provide translation and interpretation services for consumers without explicit instruction from
their employer to do so. It also stated that, unless the exception is modified, employers and
government agencies would likely discourage or even prohibit their employees from offering
informal assistance and instead use a third-party language interpretation service in order to
qualify for the exception, which would be detrimental to consumers who benefit from immediate
foreign language assistance and would create unnecessary impediments to the employers and
agencies.59
In addition, one of the trade associations and the issuing bank requested that the Bureau
consider clarifying that a third party’s (e.g., they said, an employer’s or retail partner’s)
telephone or electronic acquisition activities that are unrelated to the financial services offered by
the financial institution are not imputed to the financial institution.
59 A trade association also commented that, without some flexibility, the foreign language requirement would be particularly burdensome for financial institutions that originate prepaid products exclusively through a branch network and that have already made significant efforts to service areas with a high number of non- and limited-English speaking consumers (such as by hiring staff with foreign language speaking abilities and opening offices in those areas). The Bureau notes that, as discussed in the 2016 Final Rule, even principally using a foreign language in person does not require financial institutions to provide pre-acquisition disclosures in a foreign language pursuant to § 1005.18(b)(9). 81 FR 83934, 84091 (Nov. 22, 2016).
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Relatedly, the issuing bank requested that the Bureau consider clarifying that certain
State-required pre-acquisition disclosures for payroll card accounts would not implicate the
advertising, soliciting, and marketing trigger under § 1005.18(b)(9)(i)(B). This commenter
expressed concern that employee onboarding materials translated pursuant to State law could be
deemed a solicitation under § 1005.18(b)(9)(i)(B) if such material includes information about
how to acquire the payroll card account by telephone or electronically, thus requiring financial
institutions to provide pre-acquisition disclosures in a foreign language. This commenter
explained that financial institutions might not be made aware of such scenarios and, even if they
are, may not have enough lead time to respond appropriately. This commenter further stated that
because accurate translations take time to develop, it believes that card acquisition delays could
result and engender claims of disparate treatment by non-English speaking employees.
The Final Rule
For the reasons set forth herein, the Bureau is finalizing the revision to
§ 1005.18(b)(9)(i)(C) with an additional clarification regarding informal or ad hoc telephone
conversations, as described below. Specifically, final § 1005.18(b)(9)(i)(C) provides that foreign
language pre-acquisition disclosures are required when a financial institution provides a means
for the consumer to acquire a prepaid account by telephone or electronically principally in a
foreign language. However, foreign language pre-acquisition disclosures are not required for
payroll card accounts and government benefit accounts where the foreign language is offered by
telephone via a real-time language interpretation service provided by a third party or by an
employer or government agency on an informal or ad hoc basis as an accommodation to
prospective payroll card account or government benefit account holders. Relatedly, the Bureau
is adding a cross-reference to final § 1005.18(b)(9)(i)(C) in comments 18(b)(9)-1.i.E and ii.B,
58
which set forth examples regarding acquisition of prepaid accounts by telephone. The Bureau is
also making a technical correction in comment 18(b)(9)-1 introductory text to correct a cross-
reference (changing “§ 1005.18(b)(2)” to “§ 1005.18(b)”).
In addition, the Bureau is adopting new comment 18(b)(9)-1.ii.D to provide an example
of an informal telephone conversation that would not trigger the requirement in final
§ 1005.18(b)(9)(i)(C). New comment 18(b)(9)-1.ii.D provides the following example of a
situation in which the financial institution would not be required to provide the pre-acquisition
disclosures in a foreign language: A consumer calls a government agency to enroll in a
government benefits program. The government agency does not offer through its telephone
system an option for consumers to proceed in a foreign language. An employee of the
government agency assists the consumer with the enrollment process, including helping the
consumer acquire a government benefits account. The employee also happens to speak the
foreign language in which the consumer is most comfortable communicating, and chooses to
communicate with the consumer in that language to facilitate the enrollment process. In this
case, the employee offered language interpretation assistance on an informal or ad hoc basis to
accommodate the prospective government benefits account holder.
The Bureau intended the foreign language requirements to cover situations where a
financial institution affirmatively targets consumers in a foreign language, including providing
the means to acquire a prepaid account by telephone in that foreign language. However, the
Bureau believes that the situations described by industry stakeholders regarding real-time
language interpretation services offered over the telephone by a third party for payroll card
accounts and government benefit accounts—as well as informal interpretation assistance
provided by employees of an employer or government agency—are distinct, particularly to the
59
extent they involve providing such services in the course of facilitating more general processes
by an employer or government agency, such as the onboarding of a new employee or enrollment
of a consumer in a benefits program. With respect to informal and ad hoc telephone assistance,
the Bureau understands, based on comments received from industry, that such conversations may
occur over the telephone in a foreign language, where the employer or government agency itself
(rather than a third party) is communicating in a foreign language as an accommodation to
prospective payroll card account or government benefit account holders. The Bureau is thus
adopting language in final § 1005.18(b)(9)(i)(C) providing that such activities do not trigger the
§ 1005.18(b)(9)(i) requirement to provide pre-acquisition disclosures in a foreign language. The
Bureau remains concerned that applying the foreign language disclosure requirements of
§ 1005.18(b)(9)(i) in such circumstances might discourage employers and agencies from making
language interpretation services available at all.
Nonetheless, the Bureau does not believe it would be appropriate to completely exclude
payroll card accounts and government benefit accounts from the foreign language disclosure
requirements of § 1005.18(b)(9) as requested by one commenter. When prospective payroll card
account or government benefit account holders are affirmatively targeted in a foreign language,
the Bureau continues to believe it is appropriate to require the financial institution to provide
foreign language pre-acquisition disclosures in accordance with § 1005.18(b)(9)(i).60
60 Financial institutions, including government agencies pursuant to § 1005.15(a)(1), must provide the pre-acquisition disclosures required by § 1005.18(b) in a foreign language in connection with the acquisition of a prepaid account, if they principally use that foreign language in certain circumstances. The provision discussed in this section, § 1005.18(b)(9)(i)(C), requires a financial institution to provide foreign language disclosures if it provides a means for a consumer to acquire a prepaid account by telephone or electronically principally in a foreign language. Foreign language disclosures are also required when the financial institution principally uses the foreign language on the prepaid account packaging material, or it principally uses that foreign language to advertise, solicit, or market a prepaid account and provide a means in the advertisement, solicitation, or marketing material that the consumer uses to acquire the prepaid account by telephone or electronically. § 1005.18(b)(9)(i)(A) and (B).
60
The Bureau believes the modifications made in final § 1005.18(b)(9)(i)(C) sufficiently
address the specific concerns raised by industry. The exception regarding real-time language
interpretation services offered over the telephone by a third party addresses industry concerns
about the costs and operational challenges associated with providing the pre-acquisition
disclosures for payroll card accounts and government benefit accounts in any language a
consumer could select through a third-party language interpretation service, including concerns
that financial institutions would be unable to ensure the disclosures are interpreted accurately or
provided to the consumer in accordance with § 1005.18(b)(1)(iii)(B) and (C). In addition, the
exception regarding assistance offered on an informal or ad hoc basis as an accommodation to
prospective payroll card account or government benefit account holders addresses the concerns
raised by industry about employers and government agencies that would likely discourage or
even prohibit their employees from offering such interpretation assistance to the detriment of
consumers who benefit from the immediate assistance.
Furthermore, the Bureau is not excluding any other type of prepaid account from the
§ 1005.18(b)(9)(i)(C) requirement at this time, as requested by one commenter, because the
Bureau is not persuaded that financial institutions are likely to face the same challenges related
to language interpretation services outside the payroll and government benefit context.
The Bureau declines to clarify, as one commenter suggested, that providing certain State-
required pre-acquisition disclosures for payroll card accounts would not implicate the
advertising, soliciting, and marketing trigger for providing foreign language disclosures. The
Bureau does not believe that such a blanket clarification would be appropriate; if State-required
disclosures rise to the level of principal usage of a foreign language in advertising, soliciting, or
marketing a payroll card account (or any other type of prepaid account), the Bureau believes that
61
consumers deserve to have the full pre-acquisition disclosures for that account provided in that
foreign language.
Regarding a related issue raised by two commenters, the Bureau agrees that the foreign
language activity of a third party that is wholly unrelated to a financial institution’s prepaid
accounts should not implicate the financial institution’s obligations under the Prepaid Accounts
Rule. However, the Bureau does not believe that a modification to the regulatory text or
commentary of the rule is necessary on this point as the rule is targeted to address situations
involving use of foreign languages on the prepaid account packaging material, in advertising,
solicitation, or marketing, and in electronic or telephonic acquisition processes.
18(d) Modified Disclosure Requirements
18(d)(1) Initial Disclosures
18(d)(1)(ii) Error Resolution
As discussed in detail in the section-by-section analysis of § 1005.18(e)(3) below, the
Bureau is making certain changes regarding error resolution and limited liability requirements to
address concerns about the treatment of unverified prepaid accounts. Relatedly, the Bureau is
amending § 1005.18(d)(1)(ii), which requires certain disclosures regarding error resolution. One
prepaid issuer commented in support of this aspect of the proposal; no other commenters
addressed this provision specifically. The Bureau is thus finalizing these amendments as
proposed.
EFTA section 905(a)(7) requires financial institutions to provide a summary of the error
resolution provisions in EFTA section 908 and the consumer’s rights thereunder as part of the
62
initial disclosures and on an annual basis thereafter.61 These requirements are implemented for
accounts generally in §§ 1005.7(b)(10) and 1005.8(b). In the 2016 Final Rule, the Bureau in
§ 1005.18(d)(1)(ii) required financial institutions following the periodic statement alternative in
§ 1005.18(c)(1) to modify their § 1005.7(b) initial disclosures by disclosing a notice concerning
error resolution that is substantially similar to the notice contained in Appendix A-7(b), in place
of the notice required by § 1005.7(b)(10). The notice in Appendix A-7(b) explains to consumers
the error resolution timeframes that apply when financial institutions follow the periodic
statement alternative. To further the purposes of EFTA to provide a framework to establish the
rights, liabilities, and responsibilities of prepaid account consumers, the Bureau is exercising its
authority under EFTA section 904(c) to adopt an adjustment to the error resolution notice
requirement of EFTA section 905(a)(7), to permit notices for prepaid accounts as described in
§ 1005.18(d)(1)(ii), in order to facilitate compliance with error resolution requirements.
Specifically, the Bureau is amending § 1005.18(d)(1)(ii) to clarify that, for prepaid
account programs for which the financial institution does not have a consumer identification and
verification process, the financial institution must describe its error resolution process and
limitations on consumers’ liability for unauthorized transfers or, if none, state that there are no
such protections. The revisions to § 1005.18(e)(3), discussed below, will not require a financial
institution to offer limited liability and error resolution protections on prepaid accounts in a
program for which the financial institution does not have a consumer identification and
verification process. The clarification in § 1005.18(d)(1)(ii) is intended to ensure that financial
61 15 U.S.C. 1693c(a)(7) and 1693f.
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institutions accurately disclose to consumers the limited liability and error resolution protections
(if any) that would apply to any such prepaid account in their initial disclosures.62
18(e) Modified Limitations on Liability and Error Resolution Requirements
18(e)(3) Limitations on Liability and Error Resolution for Unverified Accounts
EFTA section 908 governs the timing and other requirements for consumers and financial
institutions pertaining to error resolution, including provisional credit.63 EFTA section 909
governs consumer liability for unauthorized EFTs.64 These requirements are implemented for
accounts generally in §§ 1005.11 and 1005.6, respectively. In the 2014 Proposal, the Bureau
proposed to use its exceptions authority under EFTA section 904(c) to add new § 1005.18(e)(3)
to except unverified prepaid accounts from the error resolution and limited liability requirements
of EFTA sections 908 and 909 to the extent such accounts remained unverified. That paragraph
would have provided that for prepaid accounts that are not payroll card accounts or government
benefit accounts,65 if a financial institution disclosed to the consumer the risks of not registering
and verifying the prepaid account using language substantially similar to the model clause
proposed by the Bureau, a financial institution would not have been required to comply with the
liability limits and error resolution requirements under §§ 1005.6 and 1005.11 for any prepaid
62 As discussed in the section-by-section analysis of § 1005.18(e)(3) below, that provision as amended by this final rule provides that financial institutions must comply with any error resolution and limited liability protections they disclose for prepaid accounts in programs for which the financial institution does not have a consumer identification and verification process. 63 15 U.S.C. 1693f. 64 15 U.S.C. 1693g. 65 As explained in the 2016 Final Rule, the Bureau excluded payroll card accounts and government benefit accounts from this provision to ensure that, among other things, they maintain the same level of error resolution and limited liability protections that they have under existing Regulation E. 81 FR 83934, 84112 n.502 (Nov. 22, 2016). Furthermore, employers and government agencies are generally required to verify the identity of a prospective payroll card account or government benefit account holder to determine employment status or eligibility for benefits.
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account for which it had not completed its collection of consumer identifying information and
identity verification.66 The 2014 Proposal would have required financial institutions to comply
with Regulation E requirements regarding limited liability and error resolution, including
provisional credit, for accounts that were verified; this would have included applying those
protections even to unauthorized transfers or other errors that occurred prior to verification.67
The Bureau solicited comment on this aspect of the 2014 Proposal, including regarding whether
the limited liability and error resolution provisions of Regulation E should apply to unverified, as
well as verified, accounts.68
The Bureau altered its approach in the 2016 Final Rule in several respects, drawing on
two primary sources of information. The first was its analysis of 325 prepaid account
agreements, in which the Bureau found that a large majority of the agreements reviewed
purported to offer Regulation E error resolution and limited liability protections.69 The second
66 As the Bureau explained in the 2014 Proposal, this provision primarily affects GPR cards that are purchased at retail, where the financial institution may—but does not always—obtain consumer identifying information and perform verification at the time the consumer calls or goes online to activate the card. Because of restrictions imposed by the Financial Crimes Enforcement Network’s (FinCEN) Prepaid Access Rule (31 CFR 1022.210(d)(1)(v)) and the payment card networks’ operating rules, among other things, the Bureau understands that consumer identification and verification is almost always performed before a card can be reloaded, used to make cash withdrawals, or used to receive cash back at the point of sale. However, the Bureau stated it was aware at the time of the 2014 Proposal that some providers allow consumers to use GPR cards purchased at retail to make purchases immediately. 79 FR 77102, 77185 (Dec. 23, 2014). 67 Regulation E sets certain timelines for investigation of alleged errors. A financial institution may take up to the maximum length of time permitted under § 1005.11(c)(2)(i) or (3)(ii), as applicable, to complete an investigation if it extends provisional credit to the consumer for the amount of the alleged error, so that consumers may continue to access the funds while the financial institution conducts its investigation. 68 79 FR 77101, 77185 (Dec. 23, 2014). 69 Bureau of Consumer Financial Protection, Study of Prepaid Account Agreements, at 13 tbl. 3 and 16 tbl. 4 (Nov. 2014) (Study of Prepaid Account Agreements), available at http://files.consumerfinance.gov/f/201411_cfpb_study-of-prepaid-account-agreements.pdf. Specifically, the Bureau found that 77.85 percent of all agreements reviewed appeared to provide full error resolution protections, with provisional credit available for all consumers where the error could not be resolved within a defined period of time, and 88.92 percent of all agreements reviewed appeared to provide liability limitations consistent with Regulation E (or better). Id. In conducting this study, the Bureau observed that very few agreements expressly differentiated between the protections applicable to verified and unverified accounts. In fact, many of the account agreements reviewed by the Bureau suggested that error resolution
65
was comments received from both industry and consumer advocacy groups reflecting a wide
spectrum of views on this aspect of the 2014 Proposal, with some consumer groups stating they
believed it struck a good balance and others advocating for increased protections, while industry
commenters focused mainly on provisional credit rather than error resolution and limited liability
protections in general. In response to these considerations, the Bureau finalized § 1005.18(e)(3)
and related commentary with several substantive revisions. Specifically, under the 2016 Final
Rule’s version of § 1005.18(e)(3), financial institutions were required to provide error resolution
and limited liability protections for all prepaid accounts, including accounts for which the
financial institution has not successfully completed its consumer identification and verification
process (i.e., accounts that have not concluded the process, accounts where the process is
concluded but the consumer’s identity could not be verified, and accounts in programs for which
there is no such process). However, for unverified accounts, financial institutions were not
required to provide provisional credit while investigations are pending. The Bureau also added
additional clarifying language to emphasize that financial institutions were not required to adopt
a consumer identification and verification process for all prepaid accounts and to clarify when a
financial institution would be deemed to have completed its consumer identification and
verification process for a particular prepaid account.
and limited liability protections were provided in accordance with Regulation E. 82 FR 29630, 29643 n. 57 (June 29, 2017). The Bureau further understood from comments on the 2014 Proposal that many financial institutions provided some limited liability and error resolution protections—though no provisional credit—for prepaid accounts that had not or could not be verified. Thus, the Bureau believed that the 2016 Final Rule’s version of § 1005.18(e)(3) generally reflected industry practice at the time. 81 FR 83934, 84112 (Nov. 22, 2016).
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The Bureau’s Proposal
Based on concerns raised by industry during the Bureau’s outreach efforts regarding
implementation and in connection with the 2017 Effective Date Proposal,70 the Bureau proposed
to revise § 1005.18(e)(3) and related commentary to provide that, for prepaid accounts that are
not payroll card accounts or government benefit accounts, a financial institution is not required
to comply with the liability limits and error resolution requirements in §§ 1005.6 and 1005.11 for
any prepaid account for which it has not successfully completed its consumer identification and
verification process. For purposes of this provision, the Bureau proposed that a financial
institution would be deemed to have not successfully completed its consumer identification and
verification process where: (A) The financial institution has not concluded its consumer
identification and verification process with respect to a particular prepaid account, provided that
it has disclosed to the consumer the risks of not verifying the account using a notice that is
substantially similar to the model notice contained in proposed Appendix A-7(c); (B) the
financial institution has concluded its consumer identification and verification process with
respect to a particular prepaid account, but could not verify the identity of the consumer,
provided that it has disclosed to the consumer the risks of not registering and verifying the
account using a notice that is substantially similar to the model notice contained in proposed
Appendix A-7(c); or (C) the financial institution does not have a consumer identification and
verification process for the prepaid account program, provided that it has made the alternative
disclosure described in proposed § 1005.18(d)(1)(ii), discussed above, and complies with the
70 These concerns are discussed in detail in the June 2017 Proposal. See 82 FR 29630, 29642-43 (June 29, 2017).
67
process it has disclosed.71 The proposal would have thus returned § 1005.18(e)(3) to
approximately what the Bureau had proposed in the 2014 Proposal, with additional modifications
to clarify treatment of prepaid account programs for which there is no consumer identification
and verification process.
Proposed § 1005.18(e)(3)(iii) would have provided that, once a financial institution
successfully completes its consumer identification and verification process with respect to a
prepaid account, the financial institution must limit the consumer’s liability for unauthorized
transfers and resolve errors that occurred prior to verification with respect to any unauthorized
transfers or other errors that satisfy the timing requirements of § 1005.6 or § 1005.11, or the
modified timing requirements in § 1005.18(e), as applicable.
The Bureau also proposed changes to the commentary accompanying § 1005.18(e). The
proposed revisions to comment 18(e)-4 would have aligned it with the proposed text of
§ 1005.18(e)(3) as well as added commentary from the 2014 Proposal to explain that, for an
unauthorized transfer or other error asserted on a previously unverified prepaid account, whether
a consumer has timely reported the unauthorized transfer or other error would be based on the
date the consumer contacts the financial institution to report the unauthorized transfer or other
error, not the date the financial institution successfully completes its consumer identification and
verification process. For an error asserted on a previously unverified prepaid account, the time
limits for the financial institution’s investigation pursuant to § 1005.11(c) would begin on the
day following the date the financial institution successfully completed its consumer identification
and verification process. 71 Comment 18(e)-5 (to which the Bureau proposed some modifications for clarity and consistency, as discussed below) makes clear that a financial institution may not delay completing its consumer identification and verification process or refuse to verify a consumer’s identity based on the consumer’s assertion of an error.
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The Bureau also proposed to revise comments 18(e)-5 and 6 to more closely align with
the proposed text of § 1005.18(e)(3) and to clarify the example provided in comment 18(e)-5
illustrating a situation where a financial institution has not successfully completed its consumer
identification and verification process. Proposed comment 18(e)-5 would have continued to
make clear that financial institutions may not delay completing their consumer identification and
verification processes or refuse to verify a consumer’s identity in order to avoid investigating an
error asserted by a consumer.
Comments Received
The Bureau received a number of comments on its proposed revisions to the error
resolution and limited liability regime for prepaid accounts. Industry commenters (including
trade associations, issuing banks, program managers, and others) as well as a think tank
supported the Bureau’s proposal to except prepaid accounts that have not successfully completed
the consumer identification and verification process from error resolution and limited liability
requirements to the extent such accounts remain unverified.72 Industry commenters generally
cited the difficulty of determining whether an asserted error was actually erroneous without
having access to information about the consumer provided during the registration process. These
commenters suggested that this would lead to increased fraud losses for the industry, primarily
arising from instances where a transaction that was in fact authorized by the accountholder is
fraudulently asserted as an error (often referred to as friendly fraud or first-party fraud). They
asserted that, because of the increased risk of friendly fraud, financial institutions would limit
pre-verification functionality on their prepaid accounts.
72 The think tank also suggested that the Bureau monitor issues relating to pre-verification errors and consider whether adjustments are necessary in the future.
69
Several commenters stated that financial institutions’ error resolution procedures often
require comparison of information provided by the consumer when asserting an error with
information previously provided by the consumer to the financial institution (for example, by
matching the purchaser’s name and shipping address for an online purchase with the consumer’s
information on file with the financial institution); such information would not be available if the
identification and verification process has not been completed.
Commenters also asserted that the provision in the 2016 Final Rule excepting unverified
accounts from the provisional credit requirement does not provide meaningful relief because
financial institutions often are ultimately unable to establish whether a given transaction on an
unverified account was in fact unauthorized. Under EFTA section 909(b), the burden of proof is
on the financial institution to show that an alleged error was in fact an authorized transaction; if
the financial institution cannot establish proof of valid authorization, the financial institution
must credit the consumer’s account. These commenters concluded that the rule would therefore
increase financial institutions’ fraud protection and mitigation costs.
A trade association predicted that, if required to resolve errors on unverified prepaid
accounts that allow immediate access to funds, financial institutions would likely issue refunds
on disputed transactions via paper check rather than by refunding directly to the prepaid account
in order to avoid fraud and having to recredit accounts for alleged unauthorized transactions that
the financial institution does not have sufficient information to investigate. However, issuing
refunds by paper check would increase financial institutions’ costs and delay consumers’ receipt
of refunds.
In response to the Bureau’s proposal to require financial institutions to limit consumers’
liability for unauthorized transfers and their obligation to resolve errors that occurred prior to
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verification for accounts that are subsequently verified (subject to the timing requirements of
§ 1005.6 or § 1005.11, or the modified timing requirements in § 1005.18(e), as applicable),
several industry commenters urged the Bureau to further limit the scope of pre-verification
transactions subject to Regulation E error resolution and limited liability protections.
A number of industry commenters requested that the Bureau only require error resolution
and limited liability protections for transactions that take place within a specified time period
(generally 30 days) prior to either the consumer’s initial submission of registration information
or successful completion of the consumer identification and verification process. Several of
these commenters stated that requiring error resolution and limited liability protections over a
longer time period increases the potential for fraud losses because investigation becomes
increasingly difficult as time goes on; a trade association suggested that financial institutions
may not have access to information necessary to investigate errors that occur on unverified
accounts more than 30 days prior to assertion of the error. A prepaid issuer and a trade
association suggested in their comment letters that, because the vast majority of consumers who
ever register a prepaid account do so within 30 days after acquiring the account, a 30-day cap
would cover most consumers who ultimately successfully complete the identification and
verification process. The same issuer and two trade associations also suggested that a prepaid
account may be used by multiple individuals prior to verification, which could further complicate
subsequent investigations.
Other industry commenters suggested that the Bureau exclude from the rule’s error
resolution and limited liability protections all transactions that occur prior to either the
consumer’s initial submission of information or successful completion of the consumer
identification and verification process, rather than upon the consumer’s acquisition of the
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account. Several of these commenters stated that because financial institutions rely on verified
consumer information to identify fraudulent transactions when they are attempted, it would be
inherently more difficult for financial institutions to limit their fraud exposure on pre-verification
transactions, even for accounts that are ultimately verified. Specifically, a program manager
commented that fraudsters may use stolen identities to complete the registration process, which
may go undetected for an extended period; this would allow those fraudsters to collect
provisional credits on pre-verification transactions that are fraudulently asserted as erroneous. A
business advocacy group and a trade association both suggested that financial institutions would
not be able to meet the Regulation E timing requirements for errors that occur before registration
is completed, thus requiring financial institutions to provide refunds even on some errors that
could have been fraudulently asserted, either because investigations would take too long or
because financial institutions would lack access to necessary information regardless of the
amount of time available for an investigation, respectively. Several industry commenters argued
that, rather than requiring Regulation E error resolution and limited liability protections on pre-
verification errors, the Bureau should highlight to consumers the importance of promptly
registering their prepaid accounts in order to receive full protections under Regulation E, or help
consumers better understand the differences between consumer protections associated with
prepaid accounts and gift cards. One industry commenter opposed providing any error resolution
and limited liability protections to pre-verification transactions based on the argument that it
would reward consumers for their failure to register prepaid accounts.
Consumer advocates did not oppose the Bureau’s proposal, but did urge the Bureau to
expressly deem certain types of prepaid accounts registered and verified upon issuance in order
to make clear such accounts were not eligible for the proposed exception. For example, a group
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of consumer advocates suggested that where the person to whom a prepaid account is issued is
known to the furnisher of the account (including, they urged, prepaid accounts used to pay
individuals for jury service, prison release cards, and utility refunds), the prepaid account should
be deemed to have successfully completed the consumer identification and verification process
because the furnisher already has significant information about the consumer. Another consumer
advocate urged the Bureau to deem prison release cards to have successfully completed the
consumer identification and verification process upon issuance, both because the correctional
facility or law enforcement agency already has significant information about that person and
because, this commenter contended, people who have recently been released from prison or jail
are particularly likely to lack regular and reliable access to a telephone or the internet, making
prompt registration of this type of prepaid account prohibitively difficult.
A program manager and a trade association both urged the Bureau not to adopt the
alternative approach described in the proposal, in which the Bureau considered whether it might
be appropriate to apply a different standard to prepaid accounts for which a consumer has
attempted but failed to complete the consumer identification and verification process. These
commenters noted the difficulty, identified in the proposal, in determining whether a consumer
has definitively “failed to complete” the process, as opposed there being a delay in the
consumer’s providing information requested by the financial institution that is needed to
complete the process. They also suggested that “failed to complete” accounts may in fact be
particularly susceptible to fraudulent activity because, in many cases, they represent instances
where the financial institution’s fraud prevention protocols have detected a higher likelihood of
an attempted fraudulent registration (such as, for example, the provided name and address not
matching public records).
73
Commenters also raised issues related to error resolution and limited liability issues
addressed by the 2016 Final Rule but outside the scope of the June 2017 Proposal. Specifically,
a trade association requested that the Bureau make several modifications to the error resolution
and limited liability protections applied to prepaid accounts after they have successfully
completed the financial institution’s consumer identification and verification process (rather than
before, which was the subject of the proposal). Separately, an anonymous commenter stated that
financial institutions should incur full liability for any error that is not resolved within 30 days.
The Final Rule
For the reasons set forth herein, the Bureau is finalizing the revisions to
§ 1005.18(e)(3)(iii) and comment 18(e)-4 with substantial modification; § 1005.18(e)(3)(i),
(e)(3)(ii), and (e)(3)(ii)(C) and comment 18(e)-5 are finalized as proposed; and comment 18(e)-6
is finalized as proposed with one minor revision for consistency. The final rule provides that for
prepaid accounts that are not payroll card accounts or government benefit accounts, a financial
institution is not required to comply with the liability limits and error resolution requirements in
§§ 1005.6 and 1005.11 for any prepaid account for which it has not successfully completed its
consumer identification and verification process. Unlike the proposal, the final rule does not
require financial institutions to limit liability or resolve errors that occurred prior to verification
on accounts that are later successfully verified.
The changes to § 1005.18(e)(3)(iii) revise the paragraph heading and text to provide that
once a financial institution successfully completes its consumer identification and verification
process with respect to a prepaid account, the financial institution must limit the consumer’s
liability for unauthorized transfers and resolve errors that occur following verification in
accordance with § 1005.6 or § 1005.11, or the modified timing requirements in this paragraph
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(e), as applicable. The revisions to comment 18(e)-4 parallel the revisions in
§ 1005.18(e)(3)(iii), and explain that a financial institution is not required to limit a consumer’s
liability for unauthorized transfers or resolve errors that occur prior to the financial institution’s
successful completion of its consumer identification and verification process with respect to a
prepaid account. The Bureau is not finalizing the proposed text that would have clarified the
timelines associated with Regulation E’s error resolution and limited liability provisions on pre-
verification transactions, as it is no longer necessary in light of the other changes to
§ 1005.18(e)(3).
To further the purposes of EFTA to provide a framework to establish the rights,
liabilities, and responsibilities of prepaid account consumers and to facilitate compliance with its
provisions, the Bureau believes it is necessary and proper to exercise its authority under EFTA
section 904(c) to revise § 1005.18(e)(3) to except accounts that have not successfully completed
the consumer identification and verification process from the error resolution and limited liability
requirements of EFTA sections 908 and 909. The Bureau continues to believe that providing
error resolution and limited liability rights to consumers even on unverified accounts would be
beneficial to consumers, and remains concerned, as it expressed in the June 2017 Proposal, that
consumers with prepaid accounts that have not been or cannot be verified will not have a right to
Regulation E error resolution and limited liability protections. However, absent the change made
in this final rule, the Bureau is also concerned that financial institutions’ fear of fraud losses in
connection with the 2016 Final Rule would prompt them to stop offering prepaid accounts at
retail that allow for immediate access to funds, to begin providing refunds for accounts that fail
verification via paper check (thus delaying consumers’ ability to access their funds), or to make
other changes to their programs that would decrease the availability or utility of prepaid accounts
75
to consumers.73 The Bureau thus believes that, on balance, it is appropriate to adopt this change
with respect to unauthorized transactions or other errors that occur on prepaid accounts that have
not been or cannot be verified.74
Specifically, the Bureau believes that consumers can obtain substantial benefits from
those prepaid products that provide immediate functionality upon purchase at retail. However,
such benefits would be lost if such products are no longer offered because of fraud concerns.
Similarly, consumers who purchase prepaid products but are not able to complete the consumer
identification and verification process successfully could be subject to a period of financial
disruption if they are required to wait for a return of their funds by check. For example, consider
a consumer who loads funds into a new prepaid account and is subsequently unable to
successfully complete the financial institution’s consumer identification and verification process.
Under current industry practice, many financial institutions allow those consumers to spend
down the funds that have been loaded into the account in this situation. But if the financial
institution were to deactivate the prepaid card and provide a refund in this situation via paper
check, the consumer would be unable to access those funds until receiving the check, which is
likely to take at least several business days. Furthermore, the consumer may encounter
difficulties in receiving the refund check if the consumer lacks a fixed address, and may incur
fees to cash the refund check.
73 The Bureau acknowledges that there is some risk that changing the approach of the 2016 Final Rule may increase the incentive for financial institutions to offer prepaid accounts for which there is no consumer identification and verification process and are therefore excepted from error resolution and limited liability protections. However, the Bureau believes that any such incentives are likely to be outweighed by the potential benefits to the financial institution of encouraging consumers to register their prepaid accounts to increase the functionality and thus the longevity of the consumer’s use of the account. 74 As noted in the June 2017 Proposal, prepaid accounts that require verification prior to issuance will not be affected by this provision.
76
The Bureau is also aware that consumers use prepaid accounts for a variety of reasons,
and that consumers who do not wish to submit their personal information for verification or who
may not be able to have their identities verified would have few other options if financial
institutions stop allowing any functionality prior to successful verification. Such consumers
could choose instead to use open loop gift cards,75 for which there is generally not an
identification and verification process, but in that case would not receive any of the other
benefits of the Prepaid Accounts Rule.
Accordingly, to avoid such outcomes, the Bureau concludes that it is appropriate to not
require compliance with Regulation E error resolution and limited liability provisions with
regard to transactions on prepaid accounts that have not been or cannot be verified. Although the
Bureau proposed to require financial institutions to comply with these requirements once an
account has been successfully verified with regard to transactions that occurred prior to the
completion of the verification process, the Bureau has concluded based on information presented
in the comments and further analysis that a requirement to do so in all circumstances could
present complications and fraud risks that may not be justified by the potential benefits. The
Bureau is aware that some financial institutions provide limited liability and error resolution
protections (though perhaps without provisional credit) on unverified accounts, for pre-
75 An “open loop” gift card can be used to make purchases at locations where cards that run on one of the major card networks are accepted. However, such cards are generally excluded from coverage under the 2016 Final Rule, and instead are generally covered by the Gift Card Rule, which requires certain disclosures, limits the imposition of certain fees, and contains other restrictions. As discussed in the 2016 Final Rule, the Gift Card Rule was adopted by the Federal Reserve Board in 2010 to implement certain sections of the Credit CARD Act. See 81 FR 83934, 83946-47 (Nov. 22, 2016). The Bureau believes that consumers who use cards that are not labeled and marketed as gift cards should be provided the same protections as other prepaid accounts under the 2016 Final Rule, rather than the more limited protections of the Gift Card Rule. Id. at 83977.
77
verification transactions, or both, as matter of contract or customer service.76 The Bureau
encourages financial institutions to continue and expand offering such services to consumers in
appropriate circumstances.
In particular, the Bureau believes, based on comments received and its understanding of
the market, that the impact on consumers of this change from the June 2017 Proposal should be
extremely limited for several reasons. First, the only accounts at issue here are those that
consumers acquire before the financial institution conducts its consumer identification and
verification process (generally, prepaid accounts sold at retail). Second, in most prepaid
programs where accounts are acquired prior to verification, consumers must attempt the
identification and verification process before they can use the account; verification generally
occurs in the course of the initial activation phone call or website visit, so consumers whose
identities are successfully verified will thus complete the process prior to using the prepaid
account and therefore should be unaffected by this change.77 Likewise, consumers who fail the
verification process would not have been entitled to error resolution and limited liability rights
under the June 2017 Proposal in any event. Third, the Bureau understands that for programs that
allow usage prior to attempted or completed verification, most consumers who successfully
verify their accounts do so shortly after acquisition. Finally, the Bureau understands that any
consumers who do conduct pre-verification transactions infrequently assert errors.
76 In conducting its Study of Prepaid Account Agreements, the Bureau observed that very few agreements expressly differentiated between the protections applicable to verified and unverified accounts. In fact, as noted above, many of the account agreements reviewed by the Bureau suggested that error resolution and limited liability protections were provided in accordance with Regulation E. 77 The Bureau understands that in nearly all cases, consumers who attempt the identification and verification process will either immediately be successfully verified or fail verification; only in a small number of cases will the verification process take longer than a few minutes. Thus, consumers with prepaid accounts that require attempted verification before use will largely not conduct pre-verification transactions at all.
78
Other factors also limit potential losses to consumers. For example, as noted above, the
Bureau understands that, for a variety of reasons—including FinCEN’s Prepaid Access Rule and
the payment card networks’ operating rules—the consumer identification and verification
process is almost always performed before a card can be reloaded, used to make cash
withdrawals, or used to receive cash back at the point of sale. Thus, even for consumers with
prepaid accounts that can be used prior to attempting or completing verification, disputes are
generally limited to purchase transactions because other functions (such as reloads and ATM
withdrawals) are not typically permitted prior to verification. Additionally, consumers’ potential
losses from pre-verification errors will be, at most, the amount of the initial load, which the
Bureau understands to generally be limited to a maximum of $500, and in practice often may be
significantly less. Thus, the Bureau believes that, in the current market, both the frequency and
magnitude of pre-verification errors are low for these accounts. More broadly, the Bureau
intends to engage in market monitoring to assess the impact on both financial institutions and
consumers of not requiring limited liability and error resolution protections on unverified prepaid
accounts.
At the same time, commenters on the June 2017 Proposal expressed concern that a rigid
requirement to provide Regulation E limited liability and error resolution rights in connection
with all transactions that occur prior to a successful registration could attract more first-party
fraud attempts and create complexity and uncertainty for issuers. As noted above, several of
these commenters stated that because financial institutions rely on information about consumers
obtained during the identification and verification process to identify fraudulent transactions
when they are attempted, it would be inherently more difficult for financial institutions to limit
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their fraud exposure on pre-verification transactions, even for accounts that are ultimately
verified.
The Bureau considered requiring financial institutions to provide error resolution and
limited liability protections on transactions occurring up to 30 days prior to verification, as
suggested by some commenters. While the Bureau appreciates that a 30-day “lookback” period
may allow some consumers on the margins to resolve pre-verification errors, the small number
of accounts that would be implicated would limit the value of this protection, while adding
additional complexity to the regulation with a new time period and exposing financial
institutions to some potential losses from first-party fraud. On balance, the Bureau believes that
a bright-line test based on successful verification of the prepaid account will simplify compliance
without significantly increasing costs to consumers. In addition, requiring error resolution and
limited liability protections only for post-verification errors aligns the treatment of prepaid
accounts with the treatment of traditional checking accounts under Federal anti-money
laundering requirements, where identifying information must be collected from the consumer
before the account is opened and verification must be complete at the same time or shortly
thereafter.78
With respect to industry commenters’ suggestions that the Bureau encourage consumers
to register prepaid accounts more quickly rather than require error resolution and limited liability
protections on pre-verification transactions, or that the Bureau’s proposal would have led to
consumers being rewarded for failing to register their accounts, the Bureau agrees that prompt
registration of prepaid accounts provides important benefits to consumers (even beyond this
78 See 31 CFR 1022.210.
80
aspect of the rule). The Bureau expects that the pre-acquisition disclosures regarding registration
and deposit insurance, pursuant to § 1005.18(b)(2)(xi) and (b)(4)(iii), will help encourage
consumers to register their prepaid accounts promptly. This final rule makes prompt registration
even more important for consumers, and the Bureau encourages financial institutions to continue
to promote to consumers the benefits of registering their accounts promptly (including the
availability of error resolution and limited liability protections).
The Bureau also considered imposing a requirement that financial institutions
additionally disclose any process they do have for investigating and resolving pre-verification
errors, similar to the requirement in final § 1005.18(d)(1)(ii) that financial institutions disclose,
for prepaid account programs with no consumer identification and verification process, their
error resolution process and limitations on consumers’ liability for unauthorized transfers, if any.
However, the Bureau is concerned that imposing such an additional disclosure requirement for
prepaid accounts more generally might have the unintended effect of discouraging financial
institutions from offering any assistance to consumers regarding concerns with pre-verification
issues, to the extent that institutions had previously provided such assistance on a discretionary
basis.79
The Bureau agrees with industry commenters that urged the Bureau not to adopt the
alternative approach described in the proposal, which would have created a third category of
error resolution and limited liability protections for accounts that have begun, but failed to
successfully complete, the financial institution’s consumer identification and verification
process. As the Bureau noted in the proposal, adding a third category of accounts would increase 79 In contrast, the Bureau concluded that it was appropriate to impose such a disclosure requirement on prepaid accounts in programs without consumer identification and verification processes because the model language in Appendix A-7(b) is inapplicable to accounts in those programs.
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the complexity of the rule, and it may be difficult for financial institutions to distinguish between
a consumer’s failure to complete the verification process and a consumer who is merely delayed
in providing additional requested information. The Bureau also appreciates the concerns raised
by commenters that “failed to complete” accounts may in fact be disproportionately likely to be
involved in fraudulent activity, because many accounts that fail to complete verification do so
based on the financial institution’s fraud prevention protocols. Accordingly, the Bureau is not
adopting this alternative approach.
With respect to the comments raised by consumer advocates regarding whether certain
types of prepaid accounts should be deemed verified at issuance, the Bureau notes that final
comment 18(e)-6 provides that a financial institution that collects and verifies consumer
identifying information, or that obtains such information after it has been collected and verified
by a third party, prior to or as part of the account acquisition process, is deemed to have
successfully completed its consumer identification and verification process with respect to that
account. While the comment provides one example of a situation where that condition is met,
that example is not intended to be exclusive. Thus, while the Bureau is not further modifying the
text of § 1005.18(e)(3) or comment 18(e)-6, the Bureau emphasizes that, where the conditions
described in that comment are met, a financial institution is deemed to have successfully
completed its consumer identification and verification process with respect to that account upon
issuance of the account. The Bureau believes that, in at least some cases, the types of prepaid
accounts mentioned by consumer advocates (including prison release cards) will in fact meet the
conditions described in comment 18(e)-6.
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18(h) Effective Date and Special Transition Rules for Disclosure Provisions
As discussed in detail in part VI below, the Bureau is extending the overall effective date
of the Prepaid Accounts Rule to April 1, 2019. Section 1005.18(h) includes several transitional
exceptions and accommodations related to the effective date. The Bureau is revising dates in the
regulatory text and headings throughout § 1005.18(h) and in comments 18(h)-1, 2, and 6 to
reflect the new April 1, 2019 effective date.
The Bureau is also making several technical corrections in § 1005.18(h) and related
commentary. First, the Bureau is correcting a typographical error in § 1005.18(h)(2)(iv)
(changing “ESign” to “E-Sign”). Next, the Bureau is revising comment 18(h)-2 for clarity and to
conform with usage of terms elsewhere in that comment and in the regulatory text (changing
“disclosures and access devices” to “disclosures on, in, or with access devices or packaging
materials” in the last sentence). Finally, the Bureau is revising comment 18(h)-5 to clarify the
provision to which that comment is referring (changing “applicable portions of those provisions”
to “requirements of § 1005.18(h)(2)(ii)”), and adding a missing space between words.
Section 1005.19 Internet Posting of Prepaid Account Agreements
19(b) Submission of Agreements to the Bureau
Section 1005.19 requires prepaid account issuers to post and submit agreements to the
Bureau, pursuant to the Bureau’s authority under EFTA sections 904(c) and 905(a) and sections
1022(c)(4) and 1032(a) of the Dodd-Frank Act.80 As discussed in the section-by-section
analyses that follow, the Bureau is narrowing the scope of several aspects of § 1005.19(b) to
facilitate compliance and reduce burden.
80 15 U.S.C. 1693b(c) and 1693c(a); 12 U.S.C. 5512(c)(4) and 5532(a).
83
19(b)(2) Amended Agreements
Section 1005.19(b)(1) requires issuers to make submissions of prepaid account
agreements to the Bureau on a rolling basis, in the form and manner specified by the Bureau.
Submissions must be made to the Bureau no later than 30 days after an issuer offers, amends, or
ceases to offer a prepaid account agreement and must contain certain information, including
other relevant parties to the agreement (such as the employer for a payroll card program).81 As
explained in the 2016 Final Rule, the Bureau believes that providing this information about each
agreement will help the Bureau, consumers, and other parties locate agreements on the Bureau’s
website quickly and effectively.82 The 2016 Final Rule’s version of § 1005.19(b)(2) stated that,
if a prepaid account agreement previously submitted to the Bureau is amended, the issuer must
submit the entire amended agreement to the Bureau, in the form and manner specified by the
Bureau, no later than 30 days after the change becomes effective. Comment 19(a)(2)-1 provides
examples of changes to an agreement that generally would be considered substantive, and
therefore would be deemed amendments to the agreement.
The Bureau’s Proposal
As explained in the June 2017 Proposal, the Bureau learned through its outreach efforts
to industry regarding implementation that some industry stakeholders were concerned about
needing to notify the Bureau every time relevant parties to a prepaid account agreement are
added or removed; this concern was particularly acute for payroll card accounts. The Bureau
81 Specifically, § 1005.19(b)(1)(i), as finalized in the 2016 Final Rule, requires issuers to submit identifying information about the issuer and the agreements submitted, including the issuer’s name, address, and identifying number (such as an RSSD ID number or tax identification number); the effective date of the prepaid account agreement; the name of the program manager, if any; and the names of other relevant parties, if applicable (such as the employer for a payroll card program or the agency for a government benefit program). 82 81 FR 83934, 84136 (Nov. 22, 2016).
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understands that while payroll card issuers may customize some payroll card programs for
specific employers, payroll card issuers often use a standard account agreement with multiple
employers, so that they may add or remove employers without changing the agreement itself.
Some stakeholders explained that changes to the list of these employers as relevant parties to the
agreement might occur on a somewhat frequent basis, and they expressed concern about
continually needing to notify the Bureau of these changes.83
Although the Bureau continues to believe that information about other relevant parties to
agreements will be useful to the Bureau, consumers, and others, the Bureau acknowledged in the
June 2017 Proposal that reporting frequent changes of relevant parties to an agreement for an
otherwise unchanging agreement could be time consuming for some issuers.
The Bureau proposed to revise § 1005.19(b)(2) to provide that an issuer may delay
submitting a change in the names of other relevant parties to an agreement until such time as the
issuer is submitting an amended agreement pursuant to § 1005.19(b)(2) or changes to other
identifying information about the issuer and its submitted agreements pursuant to
§ 1005.19(b)(1)(i), in lieu of submitting such a change no later than 30 days after the change
becomes effective. The Bureau also proposed to revise comment 19(a)(2)-1.vii to add a
reference to § 1005.19(b)(2) regarding the timing of submitting such changes to the Bureau. The
Bureau also requested, but did not receive, comment on whether there are any alternative
approaches the Bureau might adopt to reduce burden on issuers while still ensuring that
information about other relevant parties is submitted in a timely manner, such as by requiring
submission of updated information on other relevant parties at least once per quarter.
83 82 FR 29630, 29645 (June 29, 2017).
85
Comments Received
A number of industry commenters, including trade associations, a program manager, an
issuing bank, and a think tank, supported the proposed revisions to § 1005.19(b)(2).
Specifically, several of these commenters stated that the proposed revisions would facilitate
compliance and help reduce the cost and burden of having to make a submission every time they
made changes to the other relevant parties to an agreement where the agreement itself is not
amended. In addition, the issuing bank commenter confirmed that, because issuers frequently
offer a single payroll card program to multiple employers (or similar third parties), the
requirement in the 2016 Final Rule, if left unchanged, would trigger constant filings with the
Bureau because in some cases issuers add employers to these types of programs on a weekly
basis.
The Final Rule
For the reasons set forth herein, the Bureau is finalizing § 1005.19(b)(2) with
modifications as described below. First, the Bureau is bifurcating the requirements of
§ 1005.19(b)(2) into final § 1005.19(b)(2)(i), which sets forth the requirements for the
submission of amended agreements generally, and final § 1005.19(b)(2)(ii), which sets forth the
requirements for the submission of updated lists of names of other relevant parties,84 and is
adding new headings to each for organizational purposes. Final § 1005.19(b)(2)(ii) provides
that, notwithstanding § 1005.19(b)(2)(i), an issuer may delay submitting a change to the list of
names of other relevant parties to a particular agreement until the earlier of: (A) Such time as the
issuer is otherwise submitting an amended agreement or changes to other identifying information
84 The Bureau is finalizing these revisions using the term “lists of names of other relevant parties,” rather than “names of other relevant parties,” for clarity.
86
about the issuer and its submitted agreements pursuant to § 1005.19(b)(1)(i); or (B) May 1 of
each year, for any updates to the list of names of other relevant parties for that agreement that
occurred between the issuer’s last submission of relevant party information and April 1 of that
year. The Bureau is also adding new comment 19(b)(2)-2 to provide examples illustrating the
submission requirement in final § 1005.19(b)(2)(ii). In addition, the Bureau is adding a new
sentence to § 1005.19(b)(2)(i), for clarity, stating that if other identifying information about the
issuer and its submitted agreements previously submitted to the Bureau is amended, the issuer
must submit updated information to the Bureau, in the form and manner specified by the Bureau,
no later than 30 days after the change becomes effective.85 This addition parallels existing
language regarding amended agreements and is intended to avoid confusion about whether
issuers must submit to the Bureau agreements that are revised as well as changes to related
required information. The Bureau is adopting the proposed revision to comment 19(a)(2)-1.vii
(to add a reference to § 1005.19(b)(2) regarding the timing of submitting such changes to the
Bureau), with an additional conforming change to align it with revised language in
§ 1005.19(b)(2)(ii). The Bureau is also making conforming changes in § 1005.19(b)(1)(i) and
(iii), (c)(3), and (d)(2)(v), and comments 19(b)(1)-1, 19(b)(2)-1, and 19(b)(6)-1 to reflect the
changes made in final § 1005.19(b)(2).
The Bureau continues to believe that revisions to § 1005.19(b)(2) are warranted to
address the concerns raised by industry related to the requirement that an issuer update its
submission to the Bureau each time there is a change to the list of names of other relevant parties
to an agreement. At the same time, the Bureau is cognizant of the necessity for industry to
85 The proposed text of § 1005.19(b)(2) also included a technical correction (changing “comes” to “becomes”), which the Bureau is finalizing.
87
provide timely information in order for their submissions to be useful to the Bureau, consumers,
and other interested parties. As noted above, the Bureau sought comment on alternative
approaches the Bureau might adopt to reduce burden on issuers while still ensuring that
information about other relevant parties is submitted in a timely manner, such as by requiring
submission of updated information on other relevant parties at least once per quarter. Although
the Bureau received no responses to that solicitation for comment, it has continued its own
analysis. Upon further consideration, the Bureau believes it is appropriate to include an annual
backstop as part of this accommodation, ensuing that the Bureau will have reasonably up-to-date
information about other relevant parties to all prepaid account agreements while still permitting
issuers to delay submitting changes to the list of names of other relevant parties to an agreement
beyond 30 days after the change becomes effective.
Thus, in most cases, what triggers the requirement to make a submission regarding the
names of other relevant parties to a particular prepaid account agreement is a substantive change
to the content of the agreement itself or the identifying information enumerated in
§ 1005.19(b)(1)(i) other than the names of other relevant parties to the agreement. Amendments
to one agreement submitted to the Bureau do not trigger the requirement to submit updated lists
of the names of other relevant parties to all the issuers’ agreements. Issuers may, but are not
required to, submit changes to the list of names of other relevant parties to an agreement within
30 days of the change becoming effective (that is, following the same schedule as for submitting
other changes to the Bureau). However, in situations in which the Bureau does not have an up-
to-date relevant party list from the issuer as of April 1 of a given year, the issuer must provide
such updates by May 1 of that year.
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19(b)(6) Form and Content of Agreements Submitted to the Bureau
19(b)(6)(ii) Fee Information
The 2016 Final Rule’s version of § 1005.19(b)(6)(ii) stated that fee information must be
set forth either in the prepaid account agreement or in a single addendum to that agreement. It
further stated that the agreement or the addendum thereto must contain all of the fee information,
which § 1005.19(a)(3) defines as the short form disclosure for the prepaid account pursuant to
§ 1005.18(b)(2) and the fee information and statements required to be disclosed in the pre-
acquisition long form disclosure for the prepaid account pursuant to § 1005.18(b)(4). As
explained in the 2016 Final Rule, the Bureau believed that permitting issuers to include the short
form and long form disclosures together as part of the prepaid account agreement or in a single
addendum to that agreement would provide issuers some flexibility, while ensuring that
consumers and other parties reviewing the agreements have access to such information.86
The Bureau’s Proposal
As explained in the June 2017 Proposal, the Bureau was concerned that permitting the
short form and long form disclosures to be included either as part of the prepaid account
agreement or in a single addendum might not provide issuers the flexibility the Bureau
intended.87 Given the form and content requirements of the short form and long form
disclosures, the Bureau expects that many issuers will likely create two separate documents,
making the task of combining the documents into the agreement or a single addendum
potentially unnecessarily complex.88
The Bureau therefore proposed to revise § 1005.19(b)(6)(ii) to allow issuers to submit the
pre-acquisition disclosures either as one or separate addenda. Specifically, proposed
§ 1005.19(b)(6)(ii) would have provided that fee information must be set forth either in the
prepaid account agreement or in addenda to that agreement that attach either or both the short
form disclosure for the prepaid account pursuant to § 1005.18(b)(2) and the fee information and
statements required to be disclosed in the long form disclosure for the prepaid account pursuant
to § 1005.18(b)(4). The agreement or addenda thereto must contain all of the fee information, as
defined by § 1005.19(a)(3). The Bureau also proposed to make conforming changes to
§ 1005.19(b)(6)(iii) and comment 19(b)(6)-3, which govern the requirements for integrated
prepaid account agreements and which reference an optional fee information addendum, to
reflect the proposed changes to § 1005.19(b)(6)(ii).
Comments Received
Several industry commenters, including trade associations, a program manager, and a
think tank, supported the proposed revisions to § 1005.19(b)(6)(ii) and (iii). One of the trade
associations confirmed the Bureau’s expectation that many issuers will likely create two separate
documents (one for the short form disclosure and another for the long form disclosure) and thus
would be forced to combine the documents into the agreement or into a single addendum, which
they asserted will complicate the submission process if the requirement is left unchanged.
88 As noted above, § 1005.19(a)(3) defines fee information, in part, as the fee information and statements required to be disclosed in the pre-acquisition long form disclosure for the prepaid account pursuant to § 1005.18(b)(4). It does not require that the long form itself, in accordance with the form and formatting requirements of § 1005.18(b)(6) and (7), be submitted. Some issuers may integrate the long form in that fashion into, or append it to, their agreements, in order to satisfy the requirements of §§ 1005.7(b), 1005.18(b)(4) and (f)(1) simultaneously.
90
Several of the other industry commenters stated that the proposed changes would facilitate
compliance and potentially reduce the cost and burden associated with the § 1005.19 submission
and posting requirements.
A group of consumer advocates stated that, although they had no objection to the
Bureau’s proposal to permit issuers to submit the short form and long form disclosures as
separate documents, the Bureau should require the fee information to be submitted separately
from the full prepaid account agreements, which they believed would allow consumers and other
parties to find the fee information more quickly and easily without having to read the entire
terms and conditions document to search for the fee information.89
The Final Rule
For the reasons set forth herein, the Bureau is finalizing the revisions to
§ 1005.19(b)(6)(ii) and (iii) and comment 19(b)(6)-3 as proposed to provide issuers some
flexibility when submitting prepaid account agreements and fee information, as it intended in the
2016 Final Rule. The Bureau continues to believe that allowing issuers to include the fee
information either as part of the prepaid account agreement or as one or separate addenda will
also facilitate compliance.90 The Bureau is also making a conforming change in comment
19(b)(2)-1 to align with the modified language in the regulatory text.
89 This group also stated they supported the proposed revisions to § 1005.19(b)(6)(iii), which prohibits issuers from providing the Bureau provisions of an agreement or fee information in the form of change-in-terms notices or riders, because they believed a series of change-in-terms notices or riders would be complicated to piece together. However, the proposed changes to § 1005.19(b)(6)(iii) were not substantive in nature and were proposed merely to conform to the revisions to § 1005.19(b)(6)(ii). 90 Final § 1005.19(b)(6)(iii) states that an issuer may not provide provisions of the agreement or fee information to the Bureau in the form of change in terms notices or riders (other than the optional fee information addenda described in § 1005.19(b)(6)(ii)). Changes in provisions or fee information must be integrated into the text of the agreement, or the optional fee information addenda, as appropriate. This requirement is unchanged from the 2016 Final Rule other than the revision from “addendum” to “addenda” and the addition of the cross-reference to § 1005.19(b)(6)(ii).
91
With respect to the advocates’ suggestion to require fee information to be submitted
separately, the Bureau is not adopting the advocates’ suggestion because doing so would impose
an additional affirmative requirement to create separate addenda for the fee information (if an
issuer does not already have such information separated) and would be contrary to the Bureau’s
reasoning for revising § 1005.19(b)(6)(ii), which was to provide issuers flexibility when
submitting prepaid account agreements to the Bureau pursuant to § 1005.19(b). However, as
discussed above, the Bureau expects that many issuers will likely create a separate document at
least for the short form disclosure, and possibly for the long form disclosure as well, given the
form and content requirements for such disclosures set forth in § 1005.18(b); the Bureau expects
that those issuers will prefer to submit the fee information separately, even without a requirement
to do so.91 The Bureau will monitor the quality and format of agreements and addenda submitted
by issuers, and may revisit this issue in a future rulemaking if warranted.
19(f) Effective Date
As discussed in detail in part VI below, the Bureau is extending by an additional 12
months the general effective date of the Prepaid Accounts Rule, to April 1, 2019. The Bureau is
likewise extending the effective date of § 1005.19(b) for the agreement submission requirement
to April 1, 2019, as it does not believe it is warranted to have an earlier effective date for only
that provision. The unified effective date of April 1, 2019 for all Prepaid Accounts Rule
provisions renders most of the text of § 1005.19(f) unnecessary, and thus the Bureau is making
substantial changes to § 1005.19(f) and related commentary to reflect this.
91 The Bureau is designing the submission system for prepaid account agreements to allow issuers to submit separate files for the agreement, the short form disclosure, and the long form disclosure information and statements. Issuers will not be required to submit a single file that contains the agreement combined with short form and long form disclosures.
92
In the June 2017 Proposal, the Bureau proposed revisions to clarify how the October 1,
2018 effective date was described in § 1005.19(f)(2) and comment 19(f)-1 to avoid any potential
confusion between the delayed effective date for § 1005.19(b) and the general effective date of
the Prepaid Accounts Rule. In that proposal, the Bureau also stated its continued belief that the
October 1, 2018 effective date for the agreement submission requirement of § 1005.19(b) was
appropriate, given its ongoing work to develop a streamlined electronic submission process.
Although the Bureau received comments seeking a further extension of the April 1, 2018 general
effective date, the Bureau did not receive any comments specific to the proposed changes to
clarify the interaction of the two effective dates.
As stated in the June 2017 Proposal, the Bureau expects that its streamlined electronic
submission process will be fully operational before that provision’s original effective date of
October 1, 2018. However, because the Bureau is extending the effective date for all provisions
of the Prepaid Accounts Rule to April 1, 2019, much of § 1005.19(f)—which had established the
separate effective date of the agreement submission requirement along with related provisions
(both as set forth in the 2016 Final Rule and as proposed in the June 2017 Proposal)—is now
unnecessary. Accordingly, the Bureau is removing most of § 1005.19(f), including its three sub-
paragraphs, and replacing it with simplified regulatory text stating the general April 1, 2019
effective date. The Bureau is retaining the portion of § 1005.19(f)(2), renumbered as
§ 1005.19(f), stating that an issuer must submit to the Bureau no later than May 1, 2019 all
prepaid account agreements it offers as of April 1, 2019. The Bureau is also removing the
commentary that accompanied § 1005.19(f). These changes do not affect the substance of
issuers’ obligations to submit prepaid account agreements to the Bureau pursuant to
§ 1005.19(b).
93
Appendix A-7 Model Clauses for Financial Institutions Offering Prepaid Accounts (§ 1005.18(d)
and (e)(3))
The 2016 Final Rule’s version of Appendix A-7(c) provides model language for use by a
financial institution that chooses not to provide provisional credit while investigating an alleged
error for prepaid accounts for which it has not completed its consumer identification and
verification process, in accordance with the 2016 Final Rule’s general limited liability and error
resolution provisions. The Bureau proposed to revise that model language to reflect the
proposed amendments to § 1005.18(d)(1)(ii) and (e)(3). The proposed language was similar to
the language used in the 2014 Proposal, with additional language to clarify that limited liability
and error resolution rights would apply only upon successful verification of the consumer’s
identity.92 One prepaid issuer commented in support of the proposed model language. The
Bureau has removed the last sentence of the proposed model language to conform to the change
to § 1005.18(e)(3) pursuant to which financial institutions are not required to resolve pre-
verification errors, but otherwise is adopting the model language as proposed.
The language of final Appendix A-7(c) reads: “It is important to register your prepaid
account as soon as possible. Until you register your account and we verify your identity, we are
not required to research or resolve any errors regarding your account. To register your account,
go to [Internet address] or call us at [telephone number]. We will ask you for identifying
information about yourself (including your full name, address, date of birth, and [Social Security
Number] [government-issued identification number]), so that we can verify your identity.”
92 The Bureau tested a version of this model language with consumers as part of its pre-proposal disclosure testing. See 79 FR 77102, 77203 and n.327 (Dec. 23, 2014) and ICF Int’l, ICF Report: Summary of Findings: Design and Testing of Prepaid Card Fee Disclosures, at 23 (Nov. 2014), available at https://www.consumerfinance.gov/documents/4776/201411_cfpb_summary-findings-design-testing-prepaid-card-disclosures.pdf.
94
Regulation E Technical Corrections
The Bureau is making technical corrections, such as correcting typographical errors,
editing text for consistency, and making similar minor changes, to various provisions of the
Prepaid Accounts Rule in Regulation E, which are not intended to change the meaning of the
Prepaid Accounts Rule. Where these changes are being made to provisions that the Bureau is
also revising for other reasons, these changes are noted in the section-by-section analyses
above.93 In addition, the Bureau is making the following other technical corrections in
Regulation E:
Changing “customer” to “consumer” identification and verification in § 1005.18(b)(2)(xi)
and comments 18(b)(2)(xi)-2 and 18(b)(4)(iii)-1 for consistency with usage of that term
elsewhere in Regulation E, including the error resolution and limited liability provisions
in revised § 1005.18(e). The Bureau is also correcting the cross-reference at the end of
comment 18(b)(2)(xi)-2 (changing “comments 18(e)-4 and 5” to “comments 18(e)-4
through 6”).
Revising the last sentence of comment 18(b)(5)-2, for consistency with the regulatory
text, to state that the § 1005.18(b)(5) disclosure is deemed in close proximity to the
“access device’s packaging material”, rather than the “short form disclosure”, when
disclosure of the purchase price is made on or near the sales rack or display for the
packaging material at retail locations. The Bureau is also making a grammatical
correction in that paragraph (changing “written short form disclosures” to “a written short
form disclosure”).
93 See the section-by-section analyses of § 1005.18(b)(1)(ii), (b)(2)(ix), (b)(6)(i), (b)(9), and (h) above.
95
Adjusting terminology for consistency with other portions of the regulatory text and
commentary in § 1005.18(b)(7)(i)(B) (changing “information” to “statements” in
reference to § 1005.18(b)(4)(iii) through (vi) and “disclosures” to “statements” in
reference to § 1005.18(b)(4)(vi)) and in comments 2(b)(3)(i)-6 (changing “prepaid
account” to “product” in the heading), 18(b)(2)(viii)(A)-2.i introductory text and 2.ii
introductory text (changing “fees” to “fee types” in the first sentence of each comment),
18(b)(4)(vii)-1 (changing “disclosures” to “statements” in reference to
§ 1005.18(b)(4)(vi)), 18(b)(7)(ii)-1 (changing “type/pixel” to “point/pixel”), 18(c)-5
(changing “make available” to “provide”), and 19(a)(4)-2 (changing “submit” to “make
submissions of”).
Correcting grammar and typographical errors in § 1005.18(b)(1)(iii) (changing
“disclosures” to “disclosure” and “are” to “is”), § 1005.18(b)(6)(ii) (changing “long form
disclosures” to “a long form disclosure”), § 1005.18(b)(6)(iii)(A) (changing “disclosures”
to “disclosure”), § 1005.18(b)(6)(iii)(B)(2) (changing “preferred-” to “preferred”), and
§ 1005.18(b)(7)(ii)(C) (changing “long form disclosures” to “the long form disclosure”),
and in comments 18(b)(2)(iv)-1 (changing “comments” to “comment”) and
18(b)(2)(viii)(A)-2.v (adding “the” before the first reference to “United States”).
Correcting a cross-reference in comment 18(c)-6 (changing Ҥ 1005.18(e)(3)(i)(A)
through (C)” to “§ 1005.18(e)(3)(ii)(A) through (C)”).
96
Regulation Z
Subpart G—Special Rules Applicable to Credit Card Accounts and Open-End Credit Offered to
College Students
Section 1026.61 Hybrid Prepaid-Credit Cards
61(a) Hybrid Prepaid-Credit Card
Background
In the 2016 Final Rule, the Bureau amended Regulations Z and E to establish a set of
requirements in connection with “hybrid prepaid-credit cards” that can access overdraft credit
features offered by the prepaid account issuer, its affiliate, or its business partner.94 The Bureau
was concerned about overdraft credit features associated with prepaid accounts in part because of
the way that such services have evolved on traditional checking accounts. As explained in detail
in the 2016 Final Rule, checking account overdraft originally developed as an occasional
courtesy to consumers by honoring checks that would otherwise overdraw their accounts, and
was exempted from the normal rules governing credit under Regulation Z.95 As debit card use
expanded and fees rose, overdrafts increased substantially and depository institutions changed
their account pricing structures in part in reliance on overdraft income. In the 2016 Final Rule,
the Bureau noted that a substantial number of consumers have moved to prepaid accounts
specifically because they have had difficult experiences with overdraft services on traditional
checking accounts, and that prepaid account providers have frequently marketed their products
as safer and easier to use than comparable products with credit features. In light of these and
94 Under the Prepaid Accounts Rule, overdraft credit features involve credit that can be accessed from time to time in the course of authorizing, settling, or otherwise completing transactions conducted with a prepaid card to obtain goods or services, obtain cash, or conduct P2P transfers. 95 81 FR 83934, 84158 (Nov. 22, 2016).
97
other considerations, the Bureau concluded that it was appropriate to apply traditional credit card
rules to overdraft credit features accessible by hybrid prepaid-credit cards, as well as to adopt a
short list of tailored provisions to reduce the risk that consumers would experience problems in
accessing and managing prepaid accounts linked to such credit features.96
Overdraft credit features accessible by hybrid prepaid-credit cards are referred to as
“covered separate credit features” in the Prepaid Accounts Rule, as set forth in
§ 1026.61(a)(2)(i). The Bureau designed this portion of the Prepaid Accounts Rule to ensure that
these products will be treated consistently regardless of certain details about how the credit
relationship is structured. For example, the rules for covered separate credit features accessible
by hybrid prepaid-credit cards apply regardless of whether the credit is offered by the prepaid
account issuer itself, its affiliate, or its business partner. The 2016 Final Rule’s version of
§ 1026.61(a)(5)(iii) defined the term “business partner” as a person (other than the prepaid
account issuer or its affiliate) that can extend credit through a separate credit feature where the
person or its affiliate has an arrangement with a prepaid account issuer or its affiliate. The 2016
Final Rule’s version of comment 61(a)(5)(iii)-1 explained that there are two types of
arrangements that create a business partner relationship for purposes of § 1026.61(a)(5)(iii): (1)
an agreement between the parties under which a prepaid card can from time to time draw,
transfer, or authorize a draw or transfer of credit in the course of authorizing, settling, or
otherwise completing transactions conducted with the prepaid card to obtain goods or services,
obtain cash, or conduct P2P transfers; and (2) a cross-marketing or other similar agreement
between the parties to cross-market the credit feature or the prepaid account, where the prepaid
96 Id. at 84158-61.
98
card from time to time can draw, transfer, or authorize the draw or transfer of credit from the
credit feature in the course of transactions conducted with the prepaid card to obtain goods or
services, obtain cash, or conduct P2P transfers.
As explained in the 2016 Final Rule, the Bureau believed that it was appropriate to
consider a third party that can extend credit to be the prepaid account issuer’s business partner in
the above circumstances because such arrangements can be used to replicate overdraft programs
on a prepaid account. Specifically, the Bureau believed that these types of relationships between
the prepaid account issuer and the unaffiliated third party were likely to involve revenue sharing
or payments between the two companies and the pricing structure of the two accounts may be
related.97
However, the Bureau did not apply the rules related to hybrid prepaid-credit cards in
situations where there is less of a connection between the person offering credit and the prepaid
account issuer, such that the person offering credit may not be aware its credit feature is being
used as an overdraft credit feature with respect to a prepaid account.98 This could occur if the
prepaid account issuer allows consumers to link their prepaid cards to credit card accounts
offered by unrelated third-party card issuers.99 Where the two parties do not have a business
arrangement or where the prepaid card cannot be used from time to time to draw, transfer, or
authorize a draw or transfer of credit in the course of a transaction with the prepaid account, the
97 Id. at 84253. 98 See id. at 84252-53. 99 The unaffiliated third-party card issuer might not realize that its credit feature is accessible by a prepaid card in the course of transaction, so that the card issuer would have no reason to think that the provisions in the Prepaid Accounts Rule tailored to hybrid prepaid-credit cards would apply to its product. The Bureau was concerned that card issuers might try to mitigate compliance risk in ways that would make it harder for prepaid account consumers to access credit. Id. at 84253.
99
separate credit feature is deemed a “non-covered separate credit feature” as set forth in
§ 1026.61(a)(2)(ii) and does not trigger the Prepaid Accounts Rule’s provisions governing hybrid
prepaid-credit cards, although the separate credit feature generally will be subject to Regulation
Z in its own right.
The 2016 Final Rule also set forth an exception in § 1026.61(a)(4) allowing prepaid
account issuers to provide certain incidental forms of credit structured as a negative balance on
the asset feature of prepaid accounts without triggering Regulation Z and the other protections
for hybrid prepaid-credit cards. The Bureau created this exception to allow prepaid account
issuers to provide certain forms of incidental credit to their customers, including situations where
a negative balance results because a consumer completes transactions with his or her prepaid
account while an incoming load of funds from an asset account is still being processed.100
However, to limit evasion, the exception only would have applied where (1) the prepaid card
cannot access credit from a covered separate credit feature accessible by a hybrid prepaid-credit
card; (2) the prepaid account issuer has a general policy and practice of declining transactions
that will take the account negative (at least outside of the situations involving incidental credit);
and (3) the prepaid account issuer generally does not charge credit-related fees. If the conditions
in § 1026.61(a)(4) are not met, the prepaid card is a hybrid prepaid-credit card with respect to the
negative balance under § 1026.61(a)(3), and § 1026.61(b) prohibits the card issuer from
structuring the overdraft credit feature as a negative balance on the asset feature of the prepaid
account. In that case, the card issuer must structure the overdraft credit feature as a separate
100 Under the 2016 Final Rule, this exception extended to three types of incidental credit so long as the prepaid account issuer generally did not charge credit-related fees for the credit and the prepaid card could not access any covered separate credit feature: (1) credit related to “force pay” transactions; (2) a de minimis $10 payment cushion; and (3) a “delayed load cushion” where credit is extended while a load of funds from an asset account is pending.
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credit feature, such as a credit account or credit subaccount to the prepaid account that is separate
from the asset feature of the prepaid account. This separate credit feature is a “covered separate
credit feature” under § 1026.61(a)(2)(i) and is subject to the credit card rules in Regulation Z, as
well as the targeted provisions in Regulations Z and E applicable to hybrid prepaid-credit cards.
The Bureau believed that prohibiting negative balances on a prepaid account in the situations
discussed above would promote transparency and compliance with the credit card
requirements.101
Concerns Raised Related to Application of Credit Rules to Digital Wallets
Since issuance of the 2016 Final Rule, the Bureau has received feedback indicating
digital wallet providers were concerned that application of the substantive credit rules in certain
circumstances would create a number of unique challenges for their products. Unlike a GPR
card, which is generally designed to be used as a standalone product similar to a checking
account, a digital wallet is a product that by its nature is generally intended to facilitate the
consumer’s use of multiple payment options in online and mobile transactions, similar to a
physical wallet holding credit and debit cards as well as cash. As set forth in Regulation E
§ 1005.2(b)(3) and comment 2(b)(3)(i)-6, the term “prepaid account” includes digital wallets that
are capable of being loaded with funds; those that simply hold payment credentials for other
accounts but that are incapable of having funds stored in them are not covered. Even where a
digital wallet provides the ability to store funds directly, consumers also may want to store
credentials for their existing credit, debit, and prepaid cards and deposit accounts so that they
have a range of payment options available. These digital wallet providers may actively
101 81 FR 83934, 84264-65 (Nov. 22, 2016).
101
encourage consumers to use both functions, either by direct marketing to consumers or through
joint arrangements with card issuers.
In response to the 2017 Effective Date Proposal, a digital wallet provider whose product
can store funds (such that its digital wallet accounts are prepaid accounts under Regulation E
§ 1005.2(b)(3)) submitted a comment letter. That digital wallet provider raised several concerns
about the account number for a digital wallet account becoming a hybrid prepaid-credit card
where a consumer links a digital wallet account to credit card accounts that are offered by
companies with which the digital wallet provider has cross-marketing or other agreements that
would create a business partner relationship under the 2016 Final Rule’s version of
§ 1026.61(a)(5)(iii).
This commenter especially was concerned about several targeted provisions of the Rule.
First, the commenter pointed to a provision in § 1026.61(c) that generally requires a card issuer
to wait 30 days after a prepaid account has been registered before soliciting or opening new
credit features or linking existing credit features to the prepaid account that would be accessible
by a hybrid prepaid-credit card. The commenter expressed concern that this requirement would
delay a consumer’s ability to link credit card accounts offered by its business partners to the
digital wallet account, noting that where a digital wallet provider has a business partner
relationship with Issuer A but not Issuer B, consumers could add Issuer B’s credit card accounts
to their digital wallet accounts immediately, but could not add Issuer A’s credit card accounts
until 30 days after the digital wallet accounts are registered because Issuer A is a business partner
of the digital wallet provider. The commenter asserted that the policy concerns underlying the
Bureau’s decision to impose the 30-day waiting period are inapplicable to digital wallet accounts
102
in these circumstances and that such a delay would likely lead to consumer confusion and
reduced consumer choice.
Second, the commenter asserted that additional consumer confusion is likely to arise
from the long form pre-acquisition disclosure requirements set forth in Regulation E
§ 1005.18(b)(4)(vii), which mandate that disclosures of key credit pricing terms set forth in
§ 1026.60(e)(1) be included on a prepaid account’s long form disclosure if a covered separate
credit feature accessible by a hybrid prepaid-credit card may be offered to a consumer in
connection with the prepaid account. The commenter indicated that these credit disclosures for
each credit card product offered by each business partner would have to be provided to all new
digital wallet account holders in the digital wallet account’s long form disclosure even if many of
the digital wallet account holders never hold, or apply for, credit card accounts offered by those
business partners. The commenter indicated that such disclosures might be numerous depending
on how many business partners the digital wallet provider has and how many credit card
products are offered by each business partner and thus asserted that additional consumer
confusion was likely to arise from the inclusion of those disclosures in the long form for its
digital wallet accounts.
Third, the commenter raised concerns about the exception in the 2016 Final Rule’s
version of § 1026.61(a)(4) allowing prepaid account issuers to provide certain incidental forms
of credit as a negative balance on the asset feature of prepaid accounts without triggering
Regulation Z and the other protections for hybrid prepaid-credit cards. The commenter pointed
out that it could not take advantage of this exception when a customer links a credit card account
offered by one of its business partners. Rather, the 2016 Final Rule would prohibit a negative
balance and instead would require that even incidental credit be obtained using a separate credit
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account or subaccount of the prepaid account that is subject to the full protections of Regulation
Z. The commenter expressed concern that this could cause consumer confusion and increase the
likelihood that consumers would be charged fees or interest because the incidental credit would
be provided formally via the separate credit feature, rather than as a temporary negative balance
on the asset account.
Overview of the Final Rule
As discussed in more detail in the section-by-section analysis of § 1026.61(a)(5)(iii)
below, in the June 2017 Proposal, the Bureau proposed to create a limited exception from the
definition of “business partner” that would have excluded certain arrangements between card
issuers and prepaid account issuers (including digital wallet providers) from the tailored
provisions in the Prepaid Accounts Rule applicable to covered separate credit features accessible
by hybrid prepaid-credit cards. As explained below, where the credit card accounts would
already be subject to traditional credit card rules under Regulation Z and certain other safeguards
are present, the Bureau believed that it might not be necessary to apply the Prepaid Accounts
Rule’s tailored provisions to such business arrangements. The Bureau is adopting this exception
generally as proposed with some revisions as discussed in more detail in the section-by-section
analyses of § 1026.61(a)(5)(iii) and (a)(5)(iii)(D)(2) and (5) below.
Also, as discussed in more detail in the section-by-section analysis of § 1026.61(a)(4)
below, the Bureau is amending § 1026.61(a)(4) to allow a prepaid account issuer to provide
certain forms of incidental credit structured as a negative balance on the asset feature of the
prepaid account without triggering Regulation Z and the other protections for hybrid prepaid-
credit cards in situations when a covered separate credit feature offered by a business partner is
attached to the prepaid account, so long as the other conditions contained in § 1026.61(a)(4) are
104
satisfied. The Bureau also is making changes to certain other provisions in Regulation Z for
consistency with the changes to § 1026.61(a)(4). See final § 1026.61(a)(1)(iii) and (a)(3)(ii) and
final comments 4(b)(11)-1.i and iii, 61(a)(3)(i)-1.ii, 61(a)(3)(ii)-1, and 61(a)(4)-1. The changes
to these provisions are discussed in the section-by-section analysis of § 1026.61(a)(4) below.
61(a)(4) Exception for Credit Extended Through a Negative Balance
The Bureau’s Proposal
As discussed in the section-by-section analysis of § 1026.61(a) above, the Bureau
adopted § 1026.61(a)(4) in the 2016 Final Rule to allow prepaid account issuers to provide
certain incidental forms of credit as a negative balance on the asset feature of prepaid accounts
without triggering Regulation Z and the other protections for hybrid prepaid-credit cards. The
exception only would have applied where (1) the prepaid card cannot access credit from a
covered separate credit feature accessible by a hybrid prepaid-credit card; (2) the prepaid account
issuer has a general policy and practice of declining transactions that will take the account
negative (at least outside of the situations involving incidental credit); and (3) the prepaid
account issuer generally does not charge credit-related fees. If the conditions of § 1026.61(a)(4)
were met, the prepaid card is not a hybrid prepaid-credit card and the incidental credit is not
subject to Regulation Z and the other protections in Regulations Z and E for hybrid prepaid-
credit cards. Instead, this credit is regulated under Regulation E as credit incidental to the
prepaid card transaction.
If the conditions of § 1026.61(a)(4) were not met, the prepaid card would be a hybrid
prepaid-credit card with respect to the negative balance under § 1026.61(a)(3), and § 1026.61(b)
prohibits the card issuer from structuring the overdraft credit feature as a negative balance on the
asset feature of the prepaid account. In that case, the card issuer must structure an overdraft
105
credit feature in connection with a prepaid account as a separate credit feature, such as a credit
account or credit subaccount to the prepaid account that is separate from the asset feature of the
prepaid account. This separate credit feature is a “covered separate credit feature” under
§ 1026.61(a)(2)(i) and is subject to the credit card rules in Regulation Z, as well as the targeted
provisions in Regulations Z and E applicable to hybrid prepaid-credit cards.
As discussed in the section-by-section analysis of § 1026.61(a) above, in response to the
2017 Effective Date Proposal, one digital wallet provider expressed concern that it could not take
advantage of the exception in the 2016 Final Rule’s version of § 1026.61(a)(4) permitting a
negative balance on the asset feature of the prepaid account in situations in which a consumer
links a credit card account offered by a business partner of the digital wallet provider. Rather,
the 2016 Final Rule would prohibit negative balances and instead would require that even
incidental credit be obtained using a separate credit account or subaccount of the prepaid account
that is subject to the full protections of Regulation Z. The commenter expressed concern that
this could cause consumer confusion and make it more likely that consumers would be charged
fees or interest because the incidental credit would be provided formally via the separate credit
feature, rather than as a temporary negative balance on the asset account.
In the June 2017 Proposal, the Bureau did not propose changes to § 1026.61(a)(4). The
Bureau believed that the exception to the definition of “business partner” it proposed in
§ 1026.61(a)(5)(iii)(D) would address the commenter’s concern by substantially narrowing the
circumstances in which digital wallets would be likely to trigger these Regulation Z
requirements. The Bureau also believed that when the exception in proposed
§ 1026.61(a)(5)(iii)(D) did not apply, the prepaid account issuer and the card issuer would have a
substantial relationship such that the parties could avoid the concerns raised by the digital wallet
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provider by structuring the terms of the accounts to prevent consumers from being charged fees
or interest when incidental credit was provided formally via the credit card account.102
Nevertheless, the Bureau solicited comment on whether it should permit incidental credit
to be provided via a negative balance on a prepaid account even when a covered separate credit
feature is connected to the prepaid account, as requested by the digital wallet commenter. The
Bureau also solicited comment on whether prepaid account issuers or card issuers are likely to
incur any significant difficulties in structuring the accounts to prevent consumers from being
charged fees or interest when the incidental credit is provided formally via the credit card
account, such as any significant difficulties in identifying for the card issuer which transactions
on the prepaid account relate to incidental credit.
Comments Received
In response to the June 2017 Proposal, the digital wallet provider and an industry trade
association requested that the Bureau revise § 1026.61(a)(4) to permit negative balances on a
prepaid account even if a covered separate credit feature is attached to the prepaid account so
long as the other conditions set forth in § 1026.61(a)(4) are met. The digital wallet provider
indicated that consumers are likely to become confused if the digital wallet provider opens a
separate credit account or subaccount in its digital wallet to avoid a negative balance when a
credit card account issued by a business partner is linked to the digital wallet. The commenter
indicated that this consumer confusion is particularly likely to arise for consumers who
previously incurred negative balances in their prepaid accounts for incidental credit when their
digital wallets were linked only to credit card accounts issued by card issuers that are not
102 82 FR 29630, 29650 (June 29, 2017).
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business partners. The commenter indicated that consumers may not understand why the
incidental credit is now being provided through a separate credit account or subaccount (as
opposed to a negative balance) and why they are receiving Regulation Z disclosures, including
monthly statements, for this separate credit account or subaccount. The commenter also
indicated that building systems to comply with Regulation Z to hold otherwise permissible
negative balances in separate credit accounts or subaccounts when business partner credit card
accounts are linked (and converting the accounts back if consumers subsequently remove such
credit card accounts from their digital wallet accounts) would be a major technological and
financial undertaking.
This commenter recognized that the rule did not prohibit a prepaid account issuer from
charging incidental credit to the linked covered separate credit feature offered by the business
partner. Nonetheless, this commenter indicated that such charges would not always be possible.
For example, it said that the prepaid account issuer would not be able to charge the incidental
credit to a linked credit card when doing so would cause the credit card account to exceed the
credit limit set by the card issuer. Even when it is possible to charge the incidental credit to the
linked covered separate credit feature, this commenter suggested that doing so likely would be
financially detrimental to consumers. In particular, the commenter stated that incidental credit
charged to the linked covered separate credit feature would likely be deemed a cash advance by
the card issuer and thus is likely to subject the consumer to interest and fees. The commenter
also indicated that it is not likely that card issuers would be willing to waive interest or fees when
incidental credit (that would otherwise take the form of a negative balance in a digital wallet) is
instead converted to an extension of credit through the linked covered separate credit feature.
This commenter believed that it was much more likely that credit card issuers would impose
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interest and fees directly on the consumers for this credit or would expect digital wallet providers
to incur those costs on behalf of their customers.
The trade association also raised similar concerns as discussed above related to consumer
confusion and implementation burdens for digital wallet providers.
The Final Rule
For the reasons set forth herein, the Bureau is amending § 1026.61(a)(4) to allow a
prepaid account issuer to take advantage of the exception permitting a negative balance on the
asset feature of the prepaid account even if a covered separate credit feature offered by a
business partner is attached, so long as the other conditions contained in § 1026.61(a)(4) are
satisfied. As discussed above, the 2016 Final Rule’s version of § 1026.61(a)(4) provided that a
prepaid card is not a hybrid prepaid-credit card and thus is not a credit card under Regulation Z if
three conditions were met: (1) the prepaid card cannot access credit from a covered separate
credit feature accessible by a hybrid prepaid-credit card; (2) the prepaid account issuer has a
general policy and practice of declining transactions that will take the account negative (at least
outside of the situations involving incidental credit); and (3) the prepaid account issuer generally
does not charge credit-related fees.
The Bureau is making several revisions to § 1026.61(a)(4). First, the Bureau is revising
the lead-in paragraph to § 1026.61(a)(4) to provide that a prepaid card is not a hybrid prepaid-
credit card with respect to credit extended through a negative balance on the asset feature of the
prepaid account and is not a credit card for purposes of Regulation Z with respect to that credit if
the conditions of § 1026.61(a)(4) are met. Second, the Bureau is adjusting the first condition in
§ 1026.61(a)(4)(i) to provide that the prepaid card cannot access credit from a covered separate
credit feature, as described § 1026.61(a)(2)(i), that is offered by a prepaid account issuer or its
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affiliate. Third, the Bureau is modifying the heading for § 1026.61(a)(4) to make clear that this
exception relates to credit extended through a negative balance on the asset feature of the prepaid
account. With these revisions, under final § 1026.61(a)(4), a prepaid card is not a hybrid
prepaid-credit card with respect to credit extended through a negative balance on the asset
feature of the prepaid account and is not a credit card for purposes of Regulation Z with respect
to that credit, even if a covered separate credit feature offered by a business partner is attached to
the prepaid account, so long as the other conditions contained in § 1026.61(a)(4) are satisfied. If
the conditions in § 1026.61(a)(4) are met, the incidental credit extended through the negative
balance is not subject to Regulation Z and the other protections in Regulations Z and E for
hybrid prepaid-credit cards. See final comment 61(a)(4)-1.v. Instead, this credit is regulated
under Regulation E as credit incidental to the prepaid card transaction.
If the conditions of final § 1026.61(a)(4) are not met, such as where the prepaid card can
access a covered separate credit feature offered by the prepaid account issuer or its affiliate, the
prepaid card is a hybrid prepaid-credit card under § 1026.61(a)(3) with respect to credit extended
through the negative balance on the asset feature of the prepaid account. As a result,
§ 1026.61(b) prohibits the card issuer from structuring the overdraft credit feature as a negative
balance on the asset feature of the prepaid account. In that case, the card issuer must structure
the overdraft credit feature as a separate credit feature, such as a credit account or subaccount to
the prepaid account that is separate from the asset feature of the prepaid account. This separate
credit feature is a “covered separate credit feature” under § 1026.61(a)(2)(i) and is subject to the
credit card rules in Regulation Z, as well as the targeted provisions in Regulations Z and E
applicable to hybrid prepaid-credit cards.
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The Bureau notes that the exception in final § 1026.61(a)(4) only applies to credit
extended through the negative balance on the prepaid account’s asset feature in compliance with
that provision. However, if the prepaid card is also attached to a covered separate credit feature
that is offered by a business partner, the prepaid card is a hybrid prepaid-credit card with respect
to that covered separate credit feature pursuant to § 1026.61(a)(2)(i). In contrast, where a
prepaid card is not attached to any type of covered separate credit feature, the prepaid card is not
a hybrid prepaid-credit card in any respect. See final comment 61(a)(4)-1.ii.
The Bureau also is amending comment 61(a)(4)-1 and several other provisions in
Regulation Z to reflect the revised exception in final § 1026.61(a)(4) and to make other
clarifications consistent with final § 1026.61(a)(4). See final § 1026.61(a)(1)(iii) and (a)(3)(ii)
and final comments 4(b)(11)-1.i and iii, 61(a)(3)(i)-1.ii, 61(a)(3)(ii)-1, and 61(a)(4)-1. The
revisions to comment 61(a)(4)-1 are discussed in more detail below.103
103 In addition to revisions to comment 61(a)(4)-1, the Bureau is making conforming changes to the following provisions for consistency with final § 1026.61(a)(4). As revised:
(1) Section 1026.61(a)(1)(iii) provides that with respect to a credit feature structured as a negative balance on the asset feature of the prepaid account as described in § 1026.61(a)(3), a prepaid card is not a hybrid prepaid-credit card or a credit card for purposes of Regulation Z if the conditions set forth in § 1026.61(a)(4) are met;
(2) Section 1026.61(a)(3)(ii) provides that a prepaid account issuer can use a negative asset balance structure to extend credit on an asset feature of a prepaid account only if the prepaid card is not a hybrid prepaid-credit card with respect to that credit as described in § 1026.61(a)(4);
(3) Comment 4(b)(11)-1.i provides that the rules for classification of fees or charges as finance charges with respect to a covered separate credit feature are specified in § 1026.4(b)(11) and related commentary;
(4) Comment 4(b)(11)-1.iii provides that if the prepaid card is not a hybrid prepaid-credit card with respect to credit extended through a negative balance on the asset feature of the prepaid account pursuant to § 1026.61(a)(4), with regard to that credit, fees charged on the asset feature of the prepaid account in accordance with § 1026.61(a)(4)(ii)(B) are not finance charges;
(5) Comment 61(a)(3)(i)-1.ii provides that unless the credit extended through a negative balance on the asset feature of the prepaid account meets the requirements of § 1026.61(a)(4), such a product structure would violate the rules under § 1026.61(b); and
(6) Comment 61(a)(3)(ii)-1 provides that unless § 1026.61(a)(4) applies, a card issuer would violate § 1026.61(b) if it structures a credit feature as a negative balance on the asset feature of the prepaid account
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To facilitate compliance with TILA, the Bureau believes it is necessary and proper to
exercise its exception authority under TILA section 105(a) so that a prepaid card that accesses
credit structured as a negative balance on the prepaid account is excluded from the definition of
“credit card” under TILA section 103(l)104 and Regulation Z § 1026.2(a)(15)(i) (as amended by
the 2016 Final Rule), even if a covered separate credit feature offered by a business partner is
attached to the prepaid account, so long as the other conditions set forth in § 1026.61(a)(4) are
met. For the reasons discussed below, the Bureau is therefore making this exception to
§ 1026.61(a)(4).
The Bureau recognizes that when a covered separate credit feature offered by a business
partner is attached to a prepaid account, it may not always be possible to charge incidental credit
to the linked covered separate credit feature when doing so would cause the account to exceed
the credit limit set by the card issuer. In addition, even when it is possible to charge the
incidental credit to the linked covered separate credit feature, the card issuer may not be willing
to waive interest and fees on that credit. To avoid having a negative balance in the asset feature
of the prepaid account and thus violating § 1026.61(b), the prepaid account issuer could open a
separate credit account or subaccount in the digital wallet in those cases where a covered
separate credit feature issued by a business partner is linked.
The Bureau also agrees with the industry commenters that, absent its exception to
§ 1026.61(a)(4), this aspect of the Prepaid Accounts Rule likely would create significant
operational burdens for prepaid account issuers. A prepaid account issuer would need to build
and provides that a prepaid account issuer can use a negative asset balance structure to extend credit on a prepaid account if the prepaid card is not a hybrid prepaid-credit card with respect to that credit as described in § 1026.61(a)(4).
104 15 U.S.C. 1602(l).
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Regulation Z-compliant systems to hold otherwise permissible negative balances in separate
accounts or subaccounts when consumers link business partner credit card accounts (and, the
Bureau presumes, convert the account back when such accounts are removed). The Bureau also
is persuaded that this approach could be confusing to consumers, especially in the context of
digital wallets and how consumers have historically used them.
When discussing their concerns about § 1026.61(a)(4), the industry commenters
generally focused on situations that arise when a covered separate credit feature offered by a
business partner is linked to a prepaid account. The Bureau does not believe that these same
concerns arise when a covered separate credit feature is offered by the prepaid account issuer or
its affiliate (as opposed to a business partner) and thus is not amending § 1026.61(a)(4) to allow
a negative balance on the prepaid account when a covered separate credit feature offered by the
prepaid account issuer or its affiliate is attached to the prepaid account. Among other things, the
prepaid account issuer or its affiliate, in these cases, would already offer Regulation Z-compliant
covered separate credit features. The Bureau believes when the prepaid account issuer itself or
an affiliated party offer both the prepaid account and the covered separate credit feature, it will
encounter fewer difficulties in charging the incidental credit to the covered separate credit
feature, or waiving interest and fees on the incidental credit when it is charged to the covered
separate credit feature if desired.
Revisions to comment 61(a)(4)-1. The Bureau is making several revisions to comment
61(a)(4)-1 for consistency with the changes noted above to § 1026.61(a)(4). Specifically, the
Bureau is amending comment 61(a)(4)-1.i to explain that a prepaid card is not a hybrid prepaid-
credit card with respect to credit extended through a negative balance on the asset feature of the
prepaid account if: (1) the card cannot access credit from a covered separate credit feature under
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§ 1026.61(a)(2)(i) that is offered by the prepaid account issuer or its affiliate, though it is
permissible for it to access credit from a covered separate credit feature offered by a business
partner or from a non-covered separate credit feature as described under § 1026.61(a)(2)(ii); and
(2) the card can only access credit extended through a negative balance on the asset feature of the
prepaid account in accordance with both the conditions set forth in § 1026.61(a)(4)(ii)(A) and
(B).
The Bureau also is adding a new comment 61(a)(4)-1.ii to provide additional guidance on
circumstances when a prepaid card accesses both a negative balance on the asset feature of the
prepaid account that meets the conditions of § 1026.61(a)(4) and other credit features.
Specifically, consistent with final § 1026.61(a)(4), new comment 61(a)(4)-1.ii explains that if the
conditions of § 1026.61(a)(4) are met and the prepaid card can access credit from a covered
separate credit feature, as defined in § 1026.61(a)(2)(i), that is offered by a business partner, the
prepaid card is a hybrid prepaid-credit card with respect to the covered separate credit feature
pursuant to § 1026.61(a)(2)(i) but it is not a hybrid prepaid-credit card with respect to credit
extended by a prepaid account issuer through a negative balance on the asset feature of the
prepaid account that meets the conditions of § 1026.61(a)(4) or with respect to any non-covered
separate credit feature pursuant to § 1026.61(a)(2)(ii). New comment 61(a)(4)-1.ii also explains
that, if the conditions of § 1026.61(a)(4) are met and the prepaid card cannot access credit from
any covered separate credit feature, as defined in § 1026.61(a)(2)(i), the prepaid card is not a
hybrid prepaid-credit card with respect to credit extended by a prepaid account issuer through a
negative balance on the asset feature of the prepaid account that meets the conditions of
§ 1026.61(a)(4) or with respect to any non-covered separate credit feature pursuant to
§ 1026.61(a)(2)(ii).
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The 2016 Final Rule’s version of comment 61(a)(4)-1.ii provided an example of when a
prepaid card was not a hybrid prepaid-credit card because the conditions in § 1026.61(a)(4) had
been met. The Bureau is renumbering this comment as final comment 61(a)(4)-1.iii and is
revising it to be consistent with final § 1026.61(a)(4). Specifically, final comment 61(a)(4)-1.iii
explains that a prepaid card is not a hybrid prepaid-credit card with respect to credit extended
through a negative balance on the asset feature of the prepaid account in the following
circumstances because the conditions set forth in § 1026.61(a)(4) have been met: (1) the prepaid
card can only access credit extended through a negative balance on the asset feature of the
prepaid account in accordance with both the conditions set forth in § 1026.61(a)(4)(ii)(A) and
(B); and (2) the card can access credit from a non-covered separate credit feature as defined in
§ 1026.61(a)(2)(ii) and from a covered separate credit feature as defined in § 1026.61(a)(2)(i)
offered by a business partner, but cannot access credit for a covered separate credit feature that is
offered by a prepaid account issuer or its affiliate.
The 2016 Final Rule’s version of comment 61(a)(4)-1.iii provided an example of when a
prepaid card was a hybrid prepaid-credit card because the conditions of § 1026.61(a)(4) had not
been met. The Bureau is renumbering this comment as final comment 61(a)(4)-1.iv and is
revising it for consistency with the changes made to § 1026.61(a)(4). Specifically, final
comment 61(a)(4)-1.iv makes clear that a prepaid account issuer does not qualify for the
exception in § 1026.61(a)(4) if the prepaid account issuer structures the arrangement such that,
when there are insufficient or unavailable funds in the asset feature of the prepaid account at the
time a transaction is initiated, the card can be used to draw, transfer, or authorize the draw or
transfer of credit from a covered separate credit feature offered by the prepaid account issuer or
its affiliate during the authorization phase to complete the transaction so that credit is not
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extended on the asset feature of the prepaid account. In this case, the exception in final
§ 1026.61(a)(4) does not apply because the prepaid card can be used to draw, transfer, or
authorize the draw or transfer of credit from a covered separate credit feature defined in
§ 1026.61(a)(2)(i) that is offered by the prepaid account issuer or its affiliate. Final comment
61(a)(4)-1.iv also explains that, in this example, the card is a hybrid prepaid-credit card with
respect to credit extended through a negative balance on the asset feature of the prepaid account
pursuant to § 1026.61(a)(3) and with respect to the covered separate credit feature pursuant to
§ 1026.61(a)(2)(i). In that case, a card issuer has violated § 1026.61(b) because it has structured
the credit feature as a negative balance on the asset feature of the prepaid account. See
§ 1026.61(a)(3)(ii) and (b).
The 2016 Final Rule’s version of comment 61(a)(4)-1.iv provided guidance on how the
regulation applied in cases where the prepaid card was not a hybrid prepaid-credit card. The
Bureau is renumbering this comment as final comment 61(a)(4)-1.v and revising it for
consistency with final § 1026.61(a)(4). Specifically, final comment 61(a)(4)-1.v provides that, in
the case where a prepaid card is not a hybrid prepaid-credit card with respect to credit extended
through a negative balance on the asset feature of the prepaid account because the conditions in
§ 1026.61(a)(4) are met, the prepaid account issuer is not a card issuer under § 1026.2(a)(7) with
respect to the prepaid card when it accesses credit extended through the negative balance on the
asset feature of the prepaid account. The prepaid account issuer also is not a creditor under
§ 1026.17(a)(iii) or (iv) because it is not a card issuer under § 1026.2(a)(7) with respect to the
prepaid card when it accesses credit extended through the negative balance on the asset feature
of the prepaid account. The prepaid account issuer also is not a creditor under § 1026.2(a)(17)(i)
with respect to credit extended through the negative balance on the asset feature of the prepaid
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account as a result of imposing fees on the prepaid account because those fees are not finance
charges with respect to that credit, as described in final comment 4(b)(11)-1.iii.
61(a)(5) Definitions
61(a)(5)(iii)
The Bureau’s Proposal
As discussed in the section-by-section analysis of § 1026.61(a) above, overdraft credit
features accessible by hybrid prepaid-credit cards are referred to as “covered separate credit
features” in the Prepaid Accounts Rule, as set forth in § 1026.61(a)(2)(i). These covered
separate credit features are subject to the traditional credit card rules in Regulation Z, as well as
other tailored provisions established by the 2016 Final Rule in both Regulations Z and E. The
rules for covered separate credit features accessible by hybrid prepaid-credit cards apply
regardless of whether the credit is offered by the prepaid account issuer itself, its affiliate, or its
business partner. Specifically, the 2016 Final Rule’s version of § 1026.61(a)(5)(iii) defined the
term “business partner” as a person (other than the prepaid account issuer or its affiliate) that can
extend credit through a separate credit feature where the person or its affiliate has an
arrangement with the prepaid account issuer or its affiliate. Comment 61(a)(5)(iii)-1 explained
that there were two types of arrangements that create a business partner relationship for purposes
of § 1026.61(a)(5)(iii): (1) an agreement between the parties under which a prepaid card can
from time to time draw, transfer, or authorize a draw or transfer of credit in the course of
authorizing, settling, or otherwise completing transactions conducted with the prepaid card to
obtain goods or services, obtain cash, or conduct P2P transfers; and (2) a cross-marketing or
other similar agreement between the parties to cross-market the credit feature or the prepaid
account, where the prepaid card from time to time can draw, transfer, or authorize the draw or
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transfer of credit from the credit feature in the course of transactions conducted with the prepaid
card to obtain goods or services, obtain cash, or conduct P2P transfers.
As discussed above, a digital wallet provider raised several concerns in its comment letter
on the 2017 Effective Date Proposal about the account number for the digital wallet account
becoming a hybrid prepaid-credit card when consumers link their digital wallet accounts to credit
card accounts that are offered by companies with which the digital wallet provider has cross-
marketing or other agreements that would create a business partner relationship under the 2016
Final Rule’s version of § 1026.61(a)(5)(iii).
This commenter especially was concerned about several targeted provisions of the
Prepaid Accounts Rule, as discussed above in detail in the section-by-section analysis of
§ 1026.61(a). In particular, it indicated that consumers would likely be confused if they had to
wait 30 days after registering a prepaid account that is a digital wallet before linking a credit card
account offered by a business partner to the digital wallet, but they could add a credit card
account immediately after opening the digital wallet account if there was no business partner
arrangement. The commenter expressed concern that additional consumer confusion would
likely arise from the long form pre-acquisition disclosure requirements set forth in Regulation E
§ 1005.18(b)(4)(vii), which mandate that disclosures of key credit pricing terms set forth in
§ 1026.60(e)(1) be included on a prepaid account’s long form disclosure if a covered separate
credit feature accessible by a hybrid prepaid-credit card may be offered to a consumer in
connection with the prepaid account. The commenter indicated that these credit disclosures for
each credit card product offered by each business partner, which could be numerous, would have
to be provided to all new digital wallet account holders in the digital wallet account’s long form
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disclosure even though many of the digital wallet account holders may never hold, or apply for,
credit card accounts offered by those business partners.
In an effort to address these concerns, the Bureau proposed to narrow the definition of
“business partner” in § 1026.61(a)(5)(iii) to exclude certain arrangements between prepaid
account issuers and companies that offer products already subject to traditional credit card rules,
provided that certain additional safeguards are in place. Under the proposed exception, the
prepaid account issuer and the card issuer would not have been “business partners” under
proposed § 1026.61(a)(5)(iii), and thus the prepaid card would not have been a hybrid prepaid-
credit card under § 1026.61(a)(2)(i) with respect to the credit card account if certain conditions
were met.
To effectuate this potential exception, the Bureau proposed several revisions to the
definition of “business partner” in § 1026.61(a)(5)(iii). First, the Bureau proposed to move
certain guidance on when there is an arrangement between business partners from comment
61(a)(5)(iii)-1 to the regulatory text itself in proposed § 1026.61(a)(5)(iii)(A) through (C), and to
revise this language for clarity, as discussed in more detail below. In particular, this proposed
change would have included moving the descriptions of the two types of arrangements that
trigger coverage as business partners, as discussed above, to proposed § 1026.61(a)(5)(iii)(B)
and (C).
Second, in response to concerns raised by the digital wallet provider, the Bureau
proposed to add an exception, in § 1026.61(a)(5)(iii)(D), to the definition of business partner.
Specifically, proposed § 1026.61(a)(5)(iii)(D) would have provided that a person that can extend
credit through a credit card account is not a business partner of a prepaid account issuer with
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which it has an arrangement, as defined in proposed § 1026.61(a)(5)(iii)(A) through (C), with
regard to such credit card account if all of the following conditions are met:
(1) The credit card account is a credit card account under an open-end (not home-
secured) consumer credit plan that a consumer can access through a traditional credit card.
(2) The prepaid account issuer and the card issuer will not allow the prepaid card to draw,
transfer, or authorize the draw or transfer of credit from the credit card account from time to time
in the course of authorizing, settling, or otherwise completing transactions conducted with the
card to obtain goods or services, obtain cash, or conduct P2P transfers, except where the prepaid
account issuer or the card issuer has received from the consumer a written request that is
separately signed or initialized to authorize the prepaid card to access the credit card account, as
described above.
(3) The prepaid account issuer and the card issuer do not condition the acquisition or
retention of the prepaid account or the credit card account on whether a consumer authorizes the
prepaid card to access the credit card account, as described above in proposed
§ 1026.61(a)(5)(iii)(D)(2).
(4) The prepaid account issuer applies the same terms, conditions, or features to the
prepaid account when a consumer authorizes linking the prepaid card to the credit card account,
as described above, in proposed § 1026.61(a)(5)(iii)(D)(2) as it applies to the consumer’s prepaid
account when the consumer does not authorize such a linkage. In addition, the prepaid account
issuer applies the same fees to load funds from a credit card account that is linked to the prepaid
account, as described above, as it charges for a comparable load on the consumer’s prepaid
account to access a credit feature offered by a person that is not the prepaid account issuer, its
affiliate, or a person with which the prepaid account issuer has an arrangement.
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(5) The card issuer applies the same specified terms and conditions to the credit card
account when a consumer authorizes linking the prepaid card to the credit card account as
described above in proposed § 1026.61(a)(5)(iii)(D)(2) as it applies to the consumer’s credit card
account when the consumer does not authorize such a linkage. In addition, the card issuer
applies the same specified terms and conditions to extensions of credit from the credit card
account made with the prepaid card as with the traditional credit card.
Each of these conditions is discussed in more detail in the section-by-section analyses of
§ 1026.61(a)(5)(iii)(D)(1), (2), (3), (4), and (5) below, respectively.
Under proposed § 1026.61(a)(5)(iii)(D), a person that can extend credit through a credit
card account that can be linked to a prepaid account would not be a business partner of the
prepaid account issuer with which it has an arrangement, as defined in proposed
§ 1026.61(a)(5)(iii)(A) through (C), with respect to the credit card account. The credit feature
would be subject to traditional credit card rules in its own right because one of the conditions for
the proposed exception (proposed § 1026.61(a)(5)(iii)(D)(1)) is that the credit feature must be a
credit card account under an open-end (not home-secured) consumer credit plan. The prepaid
card that is linked to the credit card account, as described in proposed § 1026.61(a)(5)(iii)(D)(2),
would not be a hybrid prepaid-credit card with respect to that credit card account, and thus the
Prepaid Accounts Rule’s tailored provisions applicable in connection with covered separate
credit features accessible by hybrid prepaid-credit cards would not apply, such as the 30-day
waiting period in § 1026.61(c) and the long form pre-acquisition disclosure requirements set
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forth in Regulation E § 1005.18(b)(4)(vii).105 In addition, when the exception in proposed
§ 1026.61(a)(5)(iii)(D) were to apply, the fact that the prepaid card can access the credit card
account would not prevent the prepaid account issuer from providing incidental credit through a
negative balance on the linked prepaid account if the conditions of § 1026.61(a)(4) were met.
The Bureau did not propose to specifically tailor the proposed exception to digital wallet
accounts because the Bureau believed that it may be difficult to distinguish these digital wallet
accounts from other types of prepaid accounts, particularly those that operate without a physical
access device. Nonetheless, the Bureau believed that the proposed exception would address
most of the concerns raised by the digital wallet provider, as discussed above. While prepaid
account issuers do not generally permit card-based prepaid accounts to be linked to credit card
accounts in order to back up transactions where the prepaid account lacks sufficient funds, the
Bureau believed that the potential risk to consumers if issuers were to do so would be minimal if
the conditions in proposed § 1026.61(a)(5)(iii)(D) were met.
The Bureau did not propose to extend the exception to situations where the prepaid
account issuer or its affiliate was the party offering the credit card account. The Bureau believed
that ensuring separation and independence is more complicated when both accounts are issued
105 Other provisions in Regulations Z and E setting forth additional protections that only apply to covered separate credit features accessible by hybrid prepaid-credit cards or to prepaid accounts that are connected to such credit features include:
(1) Restrictions in Regulation E § 1005.18(g) on account terms, conditions, and features imposed on the asset feature of the prepaid account and applicability of the fee restriction in § 1026.52(a) to certain fees imposed on the asset feature of the prepaid account;
(2) Repayment-related provisions applicable to covered separate credit features in §§ 1026.5(b)(2)(ii)(A), 1026.7(b)(11), 1026.12(d)(2) and (3), and Regulation E § 1005.10(e)(1);
(3) Applicability of the claims and defenses provision in § 1026.12(c); and
(4) Applicability of limits on liability for unauthorized use and error resolution provisions in §§ 1026.12(b) and 1026.13 and Regulation E § 1005.12(a).
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by the same entity or entities under common control, particularly given that offset, security
interests, and other types of linkages may be present. Therefore, the Bureau believed that the
Prepaid Accounts Rule’s tailored protections, including the 30-day waiting period, were
warranted in such cases.
Comments Received
Industry commenters that provided specific feedback on the proposed exception to the
definition of “business partner” generally supported the exception with some suggested
modifications. For example, several industry commenters, including trade associations, program
managers, and a prepaid issuer, requested that the Bureau expand the proposed exception in
§ 1026.61(a)(5)(iii)(D) to apply to credit card accounts that are offered by the prepaid account
issuer or its affiliate, so long as the same conditions set forth in the proposed exception were met.
These commenters asserted that such an approach would avoid what they called an unfair and
differential impact to prepaid account issuers that also issue credit cards, and that a broader
exception should not introduce new risks to the consumer nor undermine the important policy
goals of the Bureau.
In addition, the digital wallet provider commenter discussed above suggested that the
Bureau not adopt the proposed conditions that the parties do not vary certain terms and
conditions based on whether the two accounts are linked as set forth in proposed
§ 1026.61(a)(5)(iii)(D)(4) and (5) to qualify for the exception, at least with respect to digital
wallets. This commenter indicated that such conditions were likely to chill innovation and
would limit digital wallet providers’ and credit card issuers’ abilities to offer consumer benefits
that take advantage of synergies created by linked offerings. On the other hand, a group of
consumer advocates commented in support of the proposed conditions. These commenters
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indicated that if a consumer can only get advantageous terms by linking accounts, the linkage is
not voluntary.
The group of consumer advocates also requested that the Bureau require an additional
condition to qualify for the exception. Specifically, they suggested that any credit card account
arrangement that is excepted from the definition of hybrid prepaid-credit card under
§ 1026.61(a)(5)(iii)(D) should be required to comply with § 1026.12(d)(3)(ii), which permits a
written plan authorizing periodic deductions from the prepaid account only if the deductions are
no more frequent than once per calendar month, such as on the date disclosed on the credit card
statement. They were concerned that the credit card accounts might only be marketed to prepaid
account holders, and these consumers could be led easily to believe that linking the two accounts
is required and to agree to automatic payments on a daily or weekly basis.
A prepaid issuer requested that the Bureau ensure that the language of the exception,
including the commentary, is drafted to clearly apply to all types of prepaid accounts, rather than
limiting its purported applicability and underlying rationale to digital wallets.
With respect to the condition contained in proposed § 1026.61(a)(5)(iii)(D)(2), several
industry commenters, including program managers and a trade association, requested that the
condition to obtain a written authorization not apply where the two accounts were linked prior to
the effective date of the Prepaid Accounts Rule. They argued that requiring prepaid account
issuers or card issuers to obtain a “written request” from consumers for accounts that are already
linked prior to the effective date would likely prove to be an extremely expensive and
burdensome condition for providers and consumers who have previously agreed to the linkage.
The Bureau also received several other comments related to the specific conditions of the
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proposed exception, which are discussed in the section-by-section analyses of
§ 1026.61(a)(5)(iii)(D)(1), (2), and (5) below.
Several industry commenters, including trade associations, program managers, and an
issuing bank, requested that the Bureau generally reconsider the 2016 Final Rule’s extension of
provisions of TILA and Regulation Z to overdraft services on prepaid accounts and instead apply
those protections currently afforded consumers of deposit accounts under Regulation E, largely
for reasons that the Bureau previously addressed in the 2016 Final Rule. In addition, another
issuing bank requested that the Bureau evaluate and consider the need for further revisions to the
Prepaid Accounts Rule’s credit-related provisions that apply to digital wallets linked to
traditional credit cards. This commenter indicated that the Prepaid Accounts Rule’s credit
related provisions, as applied to digital wallets, should be appropriately tailored to the unique
functionality of digital wallets.
The Final Rule
For the reasons set forth herein, the Bureau is adopting § 1026.61(a)(5)(iii)(A) through
(C) as proposed and is adopting the exception in § 1026.61(a)(5)(iii)(D) generally as proposed
with certain revisions. Specifically, final § 1026.61(a)(5)(iii)(D)(2) provides guidance on how
this condition applies as of April 1, 2019 (the new effective date of the Prepaid Accounts Rule,
as discussed in part VI below), if the prepaid account is linked to the credit card account prior to
that date, or prior to an arrangement between the prepaid account issuer and the card issuer as
described in final § 1026.61(a)(5)(iii)(A) through (C), as discussed in more detail below. Final
§ 1026.61(a)(5)(iii)(D)(3) also provides guidance on how this condition applies as of April 1,
2019, if the prepaid account is linked to the credit card account prior to that date, as discussed in
more detail below. The Bureau also is adopting § 1026.61(a)(5)(iii)(D)(5) and related
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commentary with modifications to clarify the intent of those provisions, as discussed in the
section-by-section analysis of that provision below.
For the reasons discussed below, to facilitate compliance with TILA, the Bureau believes
it is necessary and proper to exercise its exception authority under TILA section 105(a) so that a
prepaid card that is linked to a credit card account meeting the conditions in final
§ 1026.61(a)(5)(iii)(D) is excluded from the definition of “credit card” under TILA section
103(l)106 and Regulation Z § 1026.2(a)(15)(i) (as amended by the 2016 Final Rule).107 The
exception facilitates compliance by allowing the card issuer to comply with the rules in
Regulation Z that already apply to the credit card account without also requiring the card issuer
or the prepaid account issuer to comply with the tailored provisions in Regulations Z and E that
were adopted in the 2016 Final Rule.
The Bureau believes that is appropriate and proper to use its exception authority under
TILA section 105(a) for several reasons. First, the credit card account, even if not subject to the
specific rules for hybrid prepaid-credit cards, is subject to the credit card rules in Regulation Z in
its own right because it is a credit card account under an open-end (not home-secured) consumer
credit plan that the consumer can access with a traditional credit card, pursuant to final
§ 1026.61(a)(5)(iii)(D)(1). Thus, the linked credit feature will still receive the protections in
Regulation Z that generally apply to a credit card account under an open-end (not home-secured)
consumer credit plan.
106 15 U.S.C. 1602(l). 107 For the same reasons, the Bureau declines to extend the additional tailored provisions of the Prepaid Accounts Rule authorized under TILA section 105(a), section 1032(a) of the Dodd-Frank Act, and EFTA section 904(c) to these cards that are excluded from coverage as hybrid prepaid-credit cards.
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Second, the Bureau believes that the conditions a prepaid account issuer and a card issuer
must satisfy to qualify for the exception create substantial safeguards to protect against the
prepaid account and the credit card account being connected in a way that would pose the kinds
of risks to consumers that motivated the Bureau’s approach to the general rules for covered
separate credit features accessible by hybrid prepaid-credit cards. For example, the 30-day
waiting period in § 1026.61(c) was designed to ensure that consumers do not feel undue pressure
to decide at the time that they purchase or register a prepaid account whether to link a covered
separate credit feature to such account without having the opportunity to fully consider the terms
of the prepaid account, the separate credit feature, and the consequences of linking the two.108
The Bureau also carefully crafted rules to govern the pricing for prepaid accounts and covered
separate credit features upon linkage via a hybrid prepaid-credit card, and the disclosure thereof,
to better ensure that the consumer could understand the cost and consequences of linking credit
to a prepaid account. The Bureau believes that these requirements are not necessary when the
safeguards of the exception are met because those safeguards will help make consumers’
decisions about account acquisition, retention, and link authorization simpler and less prone to
undue pressure. In particular, the Bureau has tailored this exception to ensure that it is limited to
traditional credit card accounts already covered by Regulation Z’s open-end credit card rules and
that the consumer could not be required to link the prepaid account and the credit card account to
obtain or retain either account. In addition, to qualify for the exception, certain terms and
conditions that apply to the credit card account and the prepaid account must be the same
regardless of whether the two accounts are linked. Thus, the consequences to the consumer of
108 81 FR 83934, 84268 (Nov. 22, 2016).
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linking the two accounts are less complex. As discussed in more detail below, the Bureau
believes that when the conditions of the exception are met, it is not necessary to apply the 30-day
waiting period in § 1026.61(c) or the other additional protections in Regulations Z and E that are
applicable only to covered separate credit features or to prepaid accounts that are connected to
covered separate credit features.
Additional guidance for accounts linked prior to April 1, 2019 or prior to an
arrangement described in final § 1026.61(a)(5)(iii)(A) through (C). Based on comments
received and its own analysis, the Bureau is adopting § 1026.61(a)(5)(iii)(D)(2) generally as
proposed, with modifications to provide guidance on how this condition applies as of April 1,
2019 (the new effective date of the Prepaid Accounts Rule), if a prepaid account is linked to a
credit card account prior to that date, or prior to an arrangement between the prepaid account
issuer and the card issuer as described in final § 1026.61(a)(5)(iii)(A) through (C). Final
§ 1026.61(a)(5)(iii)(D)(3) also provides guidance on how this condition applies as of April 1,
2019 if the prepaid account is linked to the credit card account prior to that date.
Specifically, final § 1026.61(a)(5)(iii)(D)(2) states that if the credit card account is linked
to the prepaid account prior to April 1, 2019 or prior to the arrangement between the prepaid
account issuer and the card issuer as described in final § 1026.61(a)(5)(iii)(A) through (C), the
prepaid account issuer and the card issuer will be deemed to have satisfied this condition even if
they have not received from the consumer a written request as described in final
§ 1026.61(a)(5)(iii)(D)(2). The Bureau agrees with industry commenters that requiring a prepaid
account issuer or the card issuer to obtain a consumer’s written request to link the two accounts
in order to take advantage of the exception where the linkage occurred prior to the effective date
of the Prepaid Accounts Rule could prove to be an extremely expensive and burdensome
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condition for digital wallet providers and consumers who have previously agreed to the linkage.
The Bureau also recognizes that a linkage of the two accounts may occur after the effective date
of the Prepaid Accounts Rule but prior to an arrangement between the prepaid account issuer and
the card issuer as described in final § 1026.61(a)(5)(iii)(A) through (C). In this case, the Bureau
believes that it may be burdensome for digital wallet providers to obtain a consumer’s written
request to link the two accounts in order to take advantage of the exception where the linkage
occurred prior to the arrangement between the two parties as described in final
§ 1026.61(a)(5)(iii)(A) through (C). The Bureau believes that digital wallet providers currently
receive a consumer’s consent to link a credit card account to a digital wallet, and thus it is not
necessary to require digital wallet providers to obtain a consumer’s written request in accordance
with final § 1026.61(a)(5)(iii)(D)(2) for accounts linked prior to the effective date of the Prepaid
Accounts Rule or prior to the arrangement between the prepaid account issuer and card issuer as
described in final § 1026.61(a)(5)(iii)(A) through (C).
In addition, the conditions in final § 1026.61(a)(5)(iii)(D)(3) through (5) specifically
reference the condition in final § 1026.61(a)(5)(iii)(D)(2) that a consumer authorizes the prepaid
card to access the credit card account as described in final § 1026.61(a)(5)(iii)(D)(2). Consistent
with final § 1026.61(a)(5)(iii)(D)(2), for purposes of the conditions in final
§ 1026.61(a)(5)(iii)(D)(3) through (5), if the credit card account is linked to the prepaid account
prior to April 1, 2019 or prior to the arrangement between the prepaid account issuer and the card
issuer as described in final § 1026.61(a)(5)(iii)(A) through (C), a consumer will be considered to
have authorized linking the prepaid card to the credit card account as described in final
§ 1026.61(a)(5)(iii)(D)(2), even if the consumer has not provided a written request that is
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separately signed or initialized to authorize the prepaid card to access the credit card account as
described in final § 1026.61(a)(5)(iii)(D)(2).
The Bureau also believes that additional guidance is needed regarding how the condition
in final § 1026.61(a)(5)(iii)(D)(3) applies as of April 1, 2019 if the prepaid account is linked to
the credit card account prior to that date. Thus, final § 1026.61(a)(5)(iii)(D)(3) states that if the
credit card account is linked to the prepaid account prior to April 1, 2019, this condition only
applies to the retention of the prepaid account and the credit card account on or after April 1,
2019. This revision allows the prepaid account issuer and the card issuer to satisfy this condition
as of the effective date of the Prepaid Accounts Rule even if the two accounts were linked prior
to that date and the acquisition of the prepaid account or credit account was conditioned on the
link, so long as the retention of the prepaid account and the credit card account are not
conditioned on the link beginning on April 1, 2019.
The Bureau does not believe that similar guidance is needed with respect to how the
conditions in final § 1026.61(a)(5)(iii)(D)(1), (4), and (5) apply as of April 1, 2019 if the two
accounts are linked prior to that date. In order to qualify for the exception in final
§ 1026.61(a)(5)(iii)(D), the prepaid account issuer or the card issuer, as applicable, must meet the
conditions of § 1026.61(a)(5)(iii)(D)(1), (4), and (5) as of April 1, 2019 with respect to the
prepaid account or credit card account as applicable, even for accounts linked prior to that date.
Responses to Comments Received
The Bureau is not making additional revisions to the exception in final
§ 1026.61(a)(5)(iii)(D) as requested by some commenters (summarized in detail above), for the
reasons discussed below.
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Extend the exception to apply to credit card accounts offered by the prepaid account
issuer or its affiliate. The Bureau is not extending the exception in final § 1026.61(a)(5)(iii)(D)
to credit card accounts that are offered by the prepaid account issuer or its affiliate, even if the
conditions in the exception are met, as requested by several industry commenters. The Bureau
continues to believe that ensuring separation and independence is more complicated when both
accounts are issued by entities under common control, particularly given that offset, security
interests, and other types of linkages may be present. In addition, consumers’ expectations that
that these accounts must be linked in order to obtain or retain either account may be stronger if
both accounts are issued by the same entity or entities under common control. Thus, the 30-day
waiting period in § 1026.61(c) and other targeted protections may be more needed in that context
to promote deliberative decision making without undue pressure.
Remove conditions in proposed § 1026.61(a)(5)(iii)(D)(4) and (5). The Bureau is not
removing the conditions that the parties do not vary certain terms and conditions based on
whether the two accounts are linked that were set forth in proposed § 1026.61(a)(5)(iii)(D)(4)
and (5), as requested by one industry commenter. As discussed above, the Bureau believes that
these conditions are critically important to ensuring that the targeted provisions in the 2016 Final
Rule are not needed with respect to these credit card accounts. These conditions, along with the
other conditions of the exception, provide important safeguards to help ensure that consumers’
decisions about account acquisition, retention, and link authorization are simpler and less prone
to undue pressure, such that it is not necessary to apply the 30-day waiting period in § 1026.61(c)
or the other additional protections in Regulations Z and E that are applicable only to covered
separate credit features or to prepaid accounts that are connected to covered separate credit
features. In particular, these conditions help ensure that consequences to the consumer of linking
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the two accounts are less complex. The Bureau notes that card issuers generally are not
prohibited from providing more favorable specified terms and conditions on the credit card
account if the two accounts are linked. Nonetheless, in that case, the exception in final
§ 1026.61(a)(5)(iii)(D) does not apply and the prepaid card is a hybrid prepaid-credit card with
respect to the credit card account.109
Add a condition related to repayment. At this time, the Bureau is not including an
additional condition to qualify for the exception, as requested by the group of consumer
advocates, that card issuers would need to comply with § 1026.12(d)(3)(ii), which permits a
written plan authorizing periodic deductions from the prepaid account only if the deductions are
no more frequent than once per calendar month. The Bureau believes that the condition in final
§ 1026.61(a)(5)(iii)(D)(5) provides sufficient protections to consumers to prevent card issuers
from manipulating repayment terms on the credit card account when the two accounts are linked.
The condition in final § 1026.61(a)(5)(iii)(D)(5) prevents the card issuer from varying the
repayment terms of the credit card account depending on whether the consumer has authorized
linking the prepaid card to the credit card account, or depending on whether a particular credit
extension from the credit card account is accessed by the prepaid card or by the traditional credit
card. In addition, if the Bureau were to adopt this additional condition, in order to qualify for the
exception in final § 1026.61(a)(5)(iii)(D), a card issuer that has an arrangement with the prepaid
account issuer as described in final § 1026.61(a)(5)(iii)(A) through (C) would need to restrict
109 A prepaid account issuer, however, cannot provide more favorable terms and conditions on the prepaid account if a covered separate credit feature is attached. Specifically, under Regulation E § 1005.18(g), a financial institution generally must provide to any prepaid account without a covered separate credit feature the same account terms, conditions, and features that it provides on prepaid accounts in the same prepaid account program that have such a credit feature, except the financial institution is permitted to charge higher fees on the asset feature of a prepaid account with a covered separate credit feature accessible by a hybrid prepaid-credit card than the amount of a comparable fee it charges on prepaid accounts in the same prepaid account program without such a credit feature.
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automatic payments to once per calendar month on all its credit card accounts regardless of
whether the prepaid account and credit card account are linked, given that the condition in final
§ 1026.61(a)(5)(iii)(D)(5) would restrict the card issuer from varying the repayment terms of the
credit card account depending on whether the consumer has authorized linking the prepaid card
to the credit card account. The Bureau does not believe that such a restriction on the ability of
consumers to agree to automatic payments more frequent than once per month is needed to
prevent evasion at this time. Nonetheless, the Bureau will continue to monitor the use of
automatic payment plans in relation to the exception in final § 1026.61(a)(5)(iii)(D) to ensure
that consumers retain control over the funds in their prepaid accounts even when credit card
accounts that satisfy the conditions of the exception in final § 1026.61(a)(5)(iii)(D) are linked.
Clarify that the exception applies to prepaid accounts generally and not just digital
wallets. The Bureau does not believe that it is necessary to modify the language of
§ 1026.61(a)(5)(iii)(D) or its associated commentary to clarify that the exception applies to all
types of prepaid accounts, rather than just applying to digital wallets, as suggested by one
industry commenter. The Bureau believes that the regulatory language of final
§ 1026.61(a)(5)(iii)(D) and its associated commentary is clear that the exception applies to all
prepaid accounts that meet the conditions set forth in the provision, not just digital wallets.
Those provisions use the term “prepaid account” and do not limit this exception to prepaid
accounts that are digital wallets.
Reconsider applying TILA and Regulation Z to overdraft services. The Bureau believes
that it is not appropriate at this time to generally reconsider the extension of provisions of TILA
and Regulation Z to overdraft services on prepaid accounts, as requested by several industry
commenters. This request is outside the scope of the proposed amendments in the June 2017
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Proposal. In addition, for the reasons set forth in the section-by-section analysis of § 1026.61(a)
above and in the 2016 Final Rule, the Bureau continues to believe that it is appropriate to apply
traditional credit card rules to overdraft credit features accessible by hybrid prepaid-credit cards,
as well as the tailored provisions established by the 2016 Final Rule.110
Add guidance for digital wallets. At this time, the Bureau is not including additional
guidance related to how the 2016 Final Rule’s credit-related provisions relate to digital wallets,
as requested by one industry commenter. This commenter did not specify particular guidance
that would be helpful. Nonetheless, the Bureau will continue to monitor whether additional
guidance is needed with respect to the application of the 2016 Final Rule’s credit-related
provision to digital wallets.
61(a)(5)(iii)(A) through (C)
The 2016 Final Rule’s version of § 1026.61(a)(5)(iii) defined the term “business partner”
for purposes of § 1026.61 and other provisions in Regulation Z related to hybrid prepaid-credit
cards generally to mean a person (other than the prepaid account issuer or its affiliate) that can
extend credit through a separate credit feature where the person or its affiliate has an
arrangement with a prepaid account issuer or its affiliate. The Bureau proposed generally to
retain this language in proposed § 1026.61(a)(5)(iii) with a revision to reference the proposed
exception in § 1026.61(a)(5)(iii)(D).
The 2016 Final Rule’s version of comment 61(a)(5)(iii)-1 described the two types of
business arrangements that created a business partnership for purposes of the rule, separately
provided in paragraphs i and ii. The Bureau proposed to move most of this language into the
110 81 FR 83934, 84158-61 (Nov. 22, 2016).
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regulatory text, with introductory language in proposed § 1026.61(a)(5)(iii)(A) and the two types
of business arrangements described in proposed § 1026.61(a)(5)(iii)(B) and (C), respectively,
with small revisions for clarity. The Bureau also proposed to consolidate the language regarding
membership in card networks or payment networks that appeared in comments 61(a)(5)(iii)-1.i
and ii as new proposed comment 61(a)(5)(iii)-1, which would have explained that a draw,
transfer, or authorization of the draw or transfer from a credit feature may be effectuated through
a card network or a payment network, but would have emphasized that for the purposes of
proposed § 1026.61(a)(5)(iii), agreements to participate in a card network or payment network
themselves do not constitute an “agreement” or a “business, marketing, or promotional
agreement or other arrangement” described in proposed § 1026.61(a)(5)(iii)(B) or (C),
respectively. The Bureau did not propose any changes to comment 61(a)(5)(iii)-2.
The Bureau did not receive any specific comments on this aspect of the proposal. The
Bureau is adopting § 1026.61(a)(5)(iii)(A) through (C) and new comment 61(a)(5)(iii)-1 as
proposed.
61(a)(5)(iii)(D)
The Bureau’s Proposal
For the reasons explained above in the section-by-section analyses of § 1026.61(a) and
(a)(5)(iii) above, the Bureau proposed to add an exception in proposed § 1026.61(a)(5)(iii)(D) to
the definition of “business partner.” Specifically, proposed § 1026.61(a)(5)(iii)(D) would have
provided that a person that can extend credit through a credit card account is not a business
partner of a prepaid account issuer with which it has an arrangement as defined in proposed
§ 1026.61(a)(5)(iii)(A) through (C) with regard to such credit card account if certain conditions
were met. The conditions were broadly designed to ensure that the credit card account would be
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subject to Regulation Z credit card requirements in its own right and that the acquisition,
retention, and pricing terms of the prepaid account and credit card account would not depend on
whether a consumer authorizes the linking of the two accounts to allow the prepaid card to
access credit from time to time in the course of authorizing, settling, or otherwise completing
transactions conducted with the card to obtain goods or services, obtain cash, or conduct P2P
transfers. Each of the proposed conditions is discussed in more detail in the section-by-section
analyses of § 1026.61(a)(5)(iii)(D)(1), (2), (3), (4) and (5) below, respectively.
Proposed comment 61(a)(5)(iii)(D)-1 would have provided that if the exception in
proposed § 1026.61(a)(5)(iii)(D) were to apply, a person that can extend credit through the credit
card account would not be a business partner of a prepaid account issuer with which it has an
arrangement as defined in proposed § 1026.61(a)(5)(iii)(A) through (C). Accordingly, in those
cases where a consumer has authorized his or her prepaid card in accordance with proposed
§ 1026.61(a)(5)(iii)(D) to be linked to the credit card account in such a way as to allow the
prepaid card to access the credit card account as described in proposed
§ 1026.61(a)(5)(iii)(D)(2), the linked prepaid card would not be a hybrid prepaid-credit card with
respect to the linked credit card account. Rather, the linked credit card account would be a non-
covered separate credit feature, as discussed in § 1026.61(a)(2)(ii). The proposed comment
would have further noted that in this case, by definition, the linked credit card account would be
subject to the credit card rules in Regulation Z in its own right because it would be a credit card
account under an open-end (not home-secured) consumer credit plan, pursuant to the condition
set forth in proposed § 1026.61(a)(5)(iii)(D)(1).
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Comments Received
The Bureau received several comments on the proposed exception generally, which are
discussed in the section-by-section analysis of § 1026.61(a)(5)(iii) above. In addition, the
Bureau also received some comments related to specific proposed conditions, which are
discussed in the section-by-section analyses of § 1026.61(a)(5)(iii)(D)(1), (2), (3), (4), and (5).
The Bureau did not receive any specific comments on proposed comment 61(a)(5)(iii)(D)-1.
The Final Rule
For the reasons set forth in the section-by-section analysis of § 1026.61(a)(5)(iii) above,
the Bureau is adopting the exception in § 1026.61(a)(5)(iii)(D) generally as proposed with
several modifications as described in the section-by-section analyses of § 1026.61(a)(5)(iii)
above and § 1026.61(a)(5)(iii)(D)(2) and (5) below. The Bureau is adopting comment
61(a)(5)(iii)(D)-1 as proposed.
61(a)(5)(iii)(D)(1)
The Bureau’s Proposal
To satisfy the exception in proposed § 1026.61(a)(5)(iii)(D), under proposed
§ 1026.61(a)(5)(iii)(D)(1), the credit card account at issue would have to have been a credit card
account under an open-end (not home-secured) consumer credit plan that a consumer can access
through a traditional credit card. Proposed comment 61(a)(5)(iii)(D)(1)-1 would have explained
that, for purposes of the proposed exception, the term “traditional credit card” would have meant
a credit card that is not a hybrid prepaid-credit card. Thus, the condition in proposed
§ 1026.61(a)(5)(iii)(D)(1) would not have been satisfied if the only credit card that a consumer
could use to access the credit card account under an open-end (not home-secured) consumer
credit plan was a hybrid prepaid-credit card.
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This proposed condition would have ensured that the exception only applies to credit
features subject to the full protections of the credit card rules in Regulation Z that are applicable
to credit card accounts under an open-end (not home-secured) consumer credit plan. As
discussed in the 2016 Final Rule, these protections include a range of requirements governing
pricing, restrictions on repayment terms, limits on liability for unauthorized use, and
requirements that card issuers must assess the consumer’s ability to pay the credit before opening
the account. The pricing protections include restrictions on the fees that an issuer can charge
during the first year after an account is opened, and limits on the amount of fees that issuers can
charge when a consumer makes a late payment or exceeds his or her credit limit. The protections
also restrict the circumstances under which issuers can increase interest rates on credit card
accounts and establish procedures for doing so. As explained in the 2016 Final Rule, the Bureau
believed that applying these protections to overdraft features in connection with prepaid accounts
would promote transparent pricing for prepaid accountholders.111
Comments Received
A group of consumer advocate commenters requested that the Bureau revise the
definition of “traditional credit card” contained in proposed comment 61(a)(5)(iii)(D)(1)-1.
These commenters suggested that this definition was circular in that a card is not a hybrid
prepaid-credit card if it is a traditional credit card, and it is a traditional credit card if it is not a
hybrid prepaid-credit card. These commenters also stated that Regulation Z’s definition of credit
card is quite vague and could arguably apply to accounts that bear no resemblance to traditional
credit cards. These commenters suggested that the Bureau define “traditional credit card” to
111 Id. at 84161.
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mean a card, plate, or other single credit device that may be used from time to time to obtain
consumer credit under an open-end credit plan and that is either: (a) accepted by every merchant
that participates in a widely accepted payment card network and is accepted upon presentation at
multiple, unaffiliated merchants for goods or services, or (b) accepted solely for the bona fide
purchase of goods or services at a particular retail merchant or group of merchants and not to
access cash; and that the term “traditional credit card” does not include an overdraft line of credit
that is accessed by a debit or prepaid card or an account number.
The Final Rule
For the reasons set forth herein, the Bureau is adopting § 1026.61(a)(5)(iii)(D)(1) and
comment 61(a)(5)(iii)(D)(1)-1 as proposed. The Bureau does not believe that the definition of
“traditional credit card” set forth in final comment 61(a)(5)(iii)(D)(1)-1 is circular, as suggested
by the group of consumer advocates. A prepaid card cannot be a “traditional credit card”
because it is either a hybrid prepaid-credit card or not a credit card at all, and thus can never be a
traditional credit card. See comment 2(a)(15)-2.ii.D, which provides that a prepaid card is not a
credit card if it is not a hybrid prepaid-credit card. Thus, the prepaid card described in final
§ 1026.61(a)(5)(iii)(D) will not be a traditional credit card. To satisfy final
§ 1026.61(a)(5)(iii)(D)(1), the credit card account must be accessed by another access device
(other than the prepaid card) and that access device must be a traditional credit card.
The Bureau also does not believe that it is necessary to narrow the definition of
“traditional credit card,” as suggested by the group of consumer advocate commenters, to
prevent evasion. The Bureau believes that introducing additional concepts into the definition of
“traditional credit card” like the fact that the credit card must be accepted at “every” merchant
that participates in a widely accepted payment card network, or that the credit card must be
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accepted only for “bona fide” purchases of goods or services at a particular retail merchant or
group of merchants, could complicate the definition and add to compliance burden. The Bureau
does not believe that adding these concepts is warranted at this time, particularly without the
benefit of additional public comment, but will monitor market developments for risk of evasion.
61(a)(5)(iii)(D)(2)
The Bureau’s Proposal
To satisfy the exception in proposed § 1026.61(a)(5)(iii)(D), under proposed
§ 1026.61(a)(5)(iii)(D)(2), the prepaid account issuer and the card issuer would have been
prohibited from allowing the prepaid card to draw, transfer, or authorize the draw or transfer of
credit from the credit card account from time to time in the course of authorizing, settling, or
otherwise completing transactions conducted with the card to obtain goods or services, obtain
cash, or conduct P2P transfers, except where the prepaid account issuer or the card issuer has
received from the consumer a written request that is separately signed or initialized to authorize
the prepaid card to access the credit card account, as described above. To aid compliance with
the proposed exception, proposed comment 61(a)(5)(iii)(D)(2)-1 would have explained that any
accountholder on either the prepaid account or the credit feature may make the written request.
Comments Received
Several industry commenters, including program managers and a trade association,
requested that the condition to obtain a written authorization not apply where the two accounts
were linked prior to the effective date of the Prepaid Accounts Rule. They argued that requiring
prepaid account issuers or card issuers to obtain a “written request” from consumers for accounts
linked prior to the effective date would likely prove to be an extremely expensive and
burdensome condition for providers and consumers who have previously agreed to the linkage.
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These comments are discussed in more detail in the section-by-section analysis of
§ 1026.61(a)(5)(iii) above.
In addition, several industry commenters, including program managers and a trade
association, stated that section 101(a) of the E-Sign Act would apply to enable a signature or
agreement obtained electronically to have the same effect if it were obtained in writing, and
requested that the Bureau confirm this point in regulatory text or commentary. A group of
consumer advocates requested that the written request should be required to be “clear and readily
understandable,” just as written authorizations for preauthorized electronic fund transfers must
be under Regulation E (see Regulation E § 1005.10(b) and comment 10(b)-6).
The Final Rule
For the reasons set forth herein, the Bureau is adopting § 1026.61(a)(5)(iii)(D)(2) as
proposed with two modifications and is adopting comment 61(a)(5)(iii)(D)(2)-1 as proposed.
First, the Bureau is modifying § 1026.61(a)(5)(iii)(D)(2) to provide guidance on how this
condition applies as of April 1, 2019 (the new effective date of the Prepaid Accounts Rule) when
the two accounts are linked prior to that date, or prior to an arrangement between the prepaid
account issuer and the card issuer as described in § 1026.61(a)(5)(iii)(A) through (C). This
revision is discussed in more detail in the section-by-section analysis of § 1026.61(a)(5)(iii)
above. Second, as a technical modification, the Bureau is replacing the phrase “will not” in the
first sentence of § 1026.61(a)(5)(iii)(D)(2) with the phrase “do not” for consistency with the
phrase “do not” used in § 1026.61(a)(5)(iii)(D)(3).
In response to industry commenters’ requests regarding the applicability of the E-Sign
Act, the Bureau notes that the writing and signature conditions of final § 1026.61(a)(5)(iii)(D)(2)
may be satisfied electronically if in accordance with the E-Sign Act. The Bureau does not
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believe that it is necessary to include this point in the regulation or commentary because the E-
Sign Act is self-effectuating.
In response to the group of consumer advocate commenters’ request to require that the
written request be “clear and readily understandable,” the Bureau does not believe that it is
necessary to specifically require this in the regulatory text or commentary at this time. The
Bureau expects that, if a prepaid account issuer or card issuer provides language to consumers to
sign or initialize to authorize the two accounts to be linked, the prepaid account issuer or card
issuer will use language that is understandable to consumers so that the consumers are aware that
they are making a request to link the two accounts. The Bureau will monitor the processes that
prepaid account issuers or card issuers use to gain authorization to link the two accounts to
ensure that the processes are understandable to consumers.
In adopting final § 1026.61(a)(5)(iii)(D)(2), the Bureau believes that this condition, in
combination with others described further below, helps to ensure that consumers are not unduly
pressured into linking the prepaid account and the credit card account so as to access credit from
time to time in the course of transactions conducted with the prepaid card. In particular, it helps
to underscore to consumers that the prepaid account and credit card account are not required to
be linked in order for the consumer to obtain or retain the two accounts, and to ensure that
consumers have made a deliberate, affirmative decision before authorizing such a link. Two of
the tailored provisions adopted in the 2016 Final Rule—the 30-day waiting period in
§ 1026.61(c), and the requirement in Regulation E § 1005.18(b)(4)(vii) to provide certain credit
disclosures in the prepaid long form disclosure—were similarly designed to promote deliberative
decision making without undue pressure. The Bureau believes that it is not necessary to apply
these tailored provisions to a credit card account when the conditions of the exception are met,
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given that detailed application and solicitation disclosures for the credit card account still are
required under § 1026.60. In addition, the other conditions in final § 1026.61(a)(5)(iii)(D) make
consumers’ decisions about account acquisition, retention, and link authorization simpler and
less prone to undue pressure and make the consequences of linking the two accounts less
complex. Specifically, as described below, to satisfy the condition in final
§ 1026.61(a)(5)(iii)(D)(3), a prepaid account issuer and a card issuer could not condition the
acquisition or retention of either account upon whether a consumer authorized linking the two
accounts together, and final § 1026.61(a)(5)(iii)(D)(4) and (5) are designed to ensure that certain
terms and conditions (including pricing) that apply to the two accounts are not dependent on
whether they are linked.
61(a)(5)(iii)(D)(3)
The Bureau’s Proposal
To satisfy the exception in proposed § 1026.61(a)(5)(iii)(D), under proposed
§ 1026.61(a)(5)(iii)(D)(3), the prepaid account issuer and the card issuer would not have been
permitted to condition the acquisition or retention of the prepaid account or the credit card
account on whether a consumer authorizes the prepaid card to access the credit card account, as
described in proposed § 1026.61(a)(5)(iii)(D)(2).
Comments Received and the Final Rule
The Bureau did not receive any specific comments on this aspect of the proposal. For the
reasons set forth herein, the Bureau is adopting § 1026.61(a)(5)(iii)(D)(3) generally as proposed
with one revision to provide guidance on how this condition applies when the two accounts are
linked prior to April 1, 2019 (the new effective date of the Prepaid Accounts Rule). This
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revision is discussed in more detail in the section-by-section analysis of § 1026.61(a)(5)(iii)
above.
For the same reasons described above in connection with final § 1026.61(a)(5)(iii)(D)(2),
the Bureau believes that the condition in final § 1026.61(a)(5)(iii)(D)(3) helps to ensure that
consumers are not unduly pressured into linking the prepaid account and the credit card account.
As described above, the Bureau believes that the prohibition on conditioning the acquisition or
retention of the two accounts, in combination with the other conditions discussed above in
connection with final § 1026.61(a)(5)(iii)(D)(2), helps to obviate the need for the tailored
protections adopted in the 2016 Final Rule, including both the 30-day waiting period in
§ 1026.61(c) for linking a prepaid account to a covered separate credit feature, and the credit
disclosures under Regulation E § 1005.18(b)(4)(vii).
61(a)(5)(iii)(D)(4)
The Bureau’s Proposal
To satisfy the exception in proposed § 1026.61(a)(5)(iii)(D), under proposed
§ 1026.61(a)(5)(iii)(D)(4), the prepaid account issuer would have been required to apply the
same terms, conditions, or features to the prepaid account when a consumer authorizes linking
the prepaid card to the credit card account, as described in proposed § 1026.61(a)(5)(iii)(D)(2),
as it applies to the consumer’s prepaid account when the consumer does not authorize such a
linkage. In addition, the prepaid account issuer would have needed to apply the same fees to
load funds from a credit card account that is linked to the prepaid account, as described above, as
it charges for a comparable load on the consumer’s prepaid account to access a credit feature
offered by a person that is not the prepaid account issuer, its affiliate, or a person with which the
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prepaid account issuer has an arrangement, as described in proposed § 1026.61(a)(5)(iii)(A)
through (C). Each of these proposed conditions is discussed in more detail below.
Proposed comment 61(a)(5)(iii)(D)(4)-1 would have provided examples of the types of
account terms, conditions, and features that would be subject to the conditions set forth in
proposed § 1026.61(a)(5)(iii)(D)(4), underscoring that it would have applied both to pricing and
to such items as account access devices, minimum balance requirements, and account features
such as online bill payment services.
Same terms, conditions, and features on the prepaid account regardless of whether the
prepaid account is linked to the credit card account. With respect to the first condition set forth
in proposed § 1026.61(a)(5)(iii)(D)(4), proposed comment 61(a)(5)(iii)(D)(4)-2 would have
provided an example of impermissible variations in account terms under this condition in
proposed § 1026.61(a)(5)(iii)(D)(4). For example, a prepaid account issuer would not satisfy this
proposed condition if it provides on a consumer’s prepaid account reward points or cash back on
purchases with the prepaid card where the consumer has authorized a link to the credit card
account, as described in proposed § 1026.61(a)(5)(iii)(D)(2), while not providing such reward
points or cash back on the consumer’s account if the consumer has not authorized such a linkage.
Same load fees. Proposed § 1026.61(a)(5)(iii)(D)(4) also would have provided a standard
for comparing load fees for credit extensions from the credit card account that is linked to the
prepaid account, as described in proposed § 1026.61(a)(5)(iii)(D)(2). For these fees, to satisfy
the conditions of proposed § 1026.61(a)(5)(iii)(D)(4), the prepaid account issuer must apply the
same fees to load funds from the credit card account that is linked to the prepaid account, as
described above, as it charges for a comparable load on the consumer’s prepaid account to access
a credit feature offered by a person that is not the prepaid account issuer, its affiliate, or a person
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with which the prepaid account issuer has an arrangement, as described in proposed
§ 1026.61(a)(5)(iii)(A) through (C). Proposed comment 61(a)(5)(iii)(D)(4)-3 would have
provided an example to illustrate this proposed condition. Specifically, the proposed comment
would have provided that a prepaid account issuer would not satisfy this condition if it charges
on the consumer’s prepaid account $0.50 to load funds in the course of a transaction from the
credit card account offered by a card issuer with which the prepaid account issuer has an
arrangement as discussed in proposed § 1026.61(a)(5)(iii)(A) through (C), but $1.00 to load
funds in the course of a transaction from a credit card account offered by a card issuer with
which it does not have such an arrangement.
Comments Received and the Final Rule
For the reasons set forth herein, the Bureau is adopting § 1026.61(a)(5)(iii)(D)(4) and
comments 61(a)(5)(iii)(D)(4)-1 and 3 as proposed. The Bureau is adopting comment
61(a)(5)(iii)(D)(4)-2 as proposed with technical revisions to refer to “rewards points” instead of
“reward points.” As discussed in the section-by-section analysis of § 1026.61(a)(5)(iii) above, a
digital wallet provider commenter requested that the Bureau remove the condition in proposed
§ 1026.61(a)(5)(iii)(D)(4), while a group of consumer advocate commenters specifically
requested that the Bureau retain this proposed condition. The Bureau is not removing this
condition for the reasons discussed in the section-by-section analysis of § 1026.61(a)(5)(iii)
above.
The Bureau believes that ensuring that the terms, conditions, and features of the
consumer’s prepaid account do not depend on whether the consumer authorizes a link with the
credit card account, as provided for in final § 1026.61(a)(5)(iii)(D)(2), is important to address a
number of policy concerns. First, as discussed in the section-by-section analysis of
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§ 1026.61(a)(5)(iii)(D)(2) above, the fact that the prepaid account terms, conditions, and features
cannot vary based on whether the consumer authorizes a linkage makes consumers’ decisions
about account acquisition, retention, and link authorization simpler and less prone to undue
pressure and the consequences of linking the two accounts less complex, and thus, along with the
other conditions, obviates the need for applying the 30-day waiting period in § 1026.61(c) and
the long form pre-acquisition disclosure requirements in Regulation E § 1005.18(b)(4)(vii).
Second, the condition helps to ensure that certain terms and conditions of the prepaid account
and the credit card account operate independently of whether the two accounts are linked and
restrict the kind of price restructuring that the Bureau observed with regard to overdraft service
programs on checking accounts and that various provisions adopted in the 2016 Final Rule were
designed to address.112
Same terms, conditions, and features on the prepaid account regardless of whether the
prepaid account is linked to the credit card account. To satisfy the exception in final
§ 1026.61(a)(5)(iii)(D), under final § 1026.61(a)(5)(iii)(D)(4), the prepaid account issuer must
apply the same terms, conditions, or features to the prepaid account when a consumer authorizes
linking the prepaid card to the credit card account as described in final § 1026.61(a)(5)(iii)(D)(2),
as it applies to the consumer’s prepaid account when the consumer does not authorize such a
linkage. The Bureau believes that an appropriate comparison for purposes of final
112 With the 2016 Final Rule, the Bureau was concerned that prepaid account issuers might inflate fees imposed on prepaid accounts as a backdoor way to impose finance charges on draws from the covered separate credit feature without triggering certain restrictions on fees applicable to credit card accounts. 81 FR 83934, 84222-23 (Nov. 22, 2016). To prevent this, the 2016 Final Rule included in Regulation Z several provisions to ensure that where a fee imposed on the prepaid account with a covered separate credit feature is higher than a comparable fee on a prepaid account without such a credit feature, the excess amount of the fee is subject to certain fee restrictions applicable to credit card accounts. See, e.g., § 1026.52(a) and comments 6(b)(3)(iii)(D)-1 and 52(a)(2)-2. Final § 1026.61(a)(5)(iii)(D)(4) ensures that this type of activity does not occur when the exception applies.
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§ 1026.61(a)(5)(iii)(D)(4) is between the terms of the consumer’s prepaid account when the
consumer has authorized a linkage between the two accounts and the terms of the consumer’s
prepaid account when the two accounts are not linked. This approach will ensure that the pre-
acquisition disclosures for the prepaid account provided to the consumer reflect the same terms,
conditions, and features regardless of whether the consumer decides to link the two accounts,
which will make consumers’ decisions about account acquisition, retention, and link
authorization simpler and less prone to undue pressure and the consequences of linking the two
accounts less complex. This standard also is consistent with the comparison standard adopted
under final § 1026.61(a)(5)(iii)(D)(5), where the card issuer will compare the specified terms and
conditions on the consumer’s credit card account if there is a link to the prepaid account with the
specified terms and conditions that apply to the consumer’s account if there is no such link. The
Bureau believes that this approach for the comparison of terms, conditions, and features on the
consumer’s prepaid account will aid compliance by ensuring that a consistent comparison
approach can be used for both the prepaid account and the credit card account (which is
addressed in final § 1026.61(a)(5)(iii)(D)(5), discussed below).113
113 This approach for comparison of the terms, conditions, and features on the prepaid account differs from the approach used in the 2016 Final Rule for comparing the terms, conditions, and features of the prepaid account when a covered separate credit feature is connected with the prepaid account. See § 1026.4(b)(11) and Regulation E § 1005.18(g). For those provisions, the approach used is to compare the terms, conditions, and features of prepaid accounts held by different consumers in the same prepaid program. While these two approaches might yield similar results in comparing the terms, conditions, and features on the prepaid account, the Bureau believes that the approach set forth in the 2016 Final Rule would not be appropriate with respect to comparing specified terms and conditions on the credit card account because risk-based pricing might cause one consumer’s pricing to differ from another consumer’s pricing based on the consumers’ creditworthiness. Thus, the Bureau is adopting an approach for comparing the terms, conditions, and features of the prepaid account that is consistent with the one adopted in final § 1026.61(a)(5)(iii)(D)(5) for comparing specified terms and conditions imposed on the credit card account. See the section-by-section analysis of § 1026.61(a)(5)(iii)(D)(5) below for a more detailed discussion on the approach for comparing specified terms and conditions imposed on the credit card account.
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Same load fees. Final § 1026.61(a)(5)(iii)(D)(4) also provides a standard for comparing
load fees for credit extensions from the credit card account that is linked to the prepaid account,
as described in final § 1026.61(a)(5)(iii)(D)(2). For these fees, to satisfy the conditions of final
§ 1026.61(a)(5)(iii)(D)(4), the prepaid account issuer must apply the same fees to load funds
from the credit card account that is linked to the prepaid account (as described above) as it
charges for a comparable load on the consumer’s prepaid account to access a credit feature
offered by a person that is not the prepaid account issuer, its affiliate, or a person with which the
prepaid account issuer has an arrangement as described in final § 1026.61(a)(5)(iii)(A) through
(C).
The Bureau believes that this standard provides an appropriate test with regard to
comparing load fees by focusing specifically on what fees are charged on the consumer’s prepaid
account in a comparable load from a separate credit feature offered by a person that is not the
prepaid account issuer, its affiliate, or a person with which the prepaid account issuer has an
arrangement as described in final § 1026.61(a)(5)(iii)(A) through (C). The Bureau believes that
this approach will facilitate compliance and is appropriate given that the Bureau expects that the
exception in final § 1026.61(a)(5)(iii)(D) will most likely be used with respect to digital wallet
accounts that consumers may choose to associate with multiple credit card accounts, including
those offered by unaffiliated third parties.114
114 This standard for comparing load fees set forth in final § 1026.61(a)(5)(iii)(D)(4) differs from the comparison for load fees adopted in the 2016 Final Rule with regard to covered separate credit features accessible by hybrid prepaid-credit cards. Specifically, as adopted in the 2016 Final Rule, Regulation E comment 18(g)-5.iii compares what fees are charged for a load from a covered separate credit feature accessible to a hybrid prepaid-credit card in the course of a transaction to the per transaction fee that is charged to access available funds in prepaid accounts in the same prepaid account program without a covered separate credit feature. Also, Regulation E comment 18(g)-5.iv compares what fees are charged for a load from a covered separate credit feature accessible by a hybrid prepaid-credit card outside the course of a transaction to the fees, if any, to load funds as a direct deposit of salary from an employer or a direct deposit of government benefits that are charged on prepaid accounts in the same prepaid
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61(a)(5)(iii)(D)(5)
The Bureau’s Proposal
To satisfy the exception in proposed § 1026.61(a)(5)(iii)(D), under proposed
§ 1026.61(a)(5)(iii)(D)(5), the card issuer would have been required to apply the same specified
terms and conditions to the credit card account when a consumer authorizes linking the prepaid
card to the credit card account, as described in proposed § 1026.61(a)(5)(iii)(D)(2), as it applies
to the consumer’s credit card account when the consumer does not authorize such a linkage. In
addition, to satisfy proposed § 1026.61(a)(5)(iii)(D)(5), the card issuer would have been required
to apply the same specified terms and conditions to extensions of credit from the credit card
account made with the prepaid card as with the traditional credit card.
Proposed § 1026.61(a)(5)(iii)(D)(5) would have specifically defined “specified terms and
conditions” to mean the terms and conditions required to be disclosed under § 1026.6(b), any
repayment terms and conditions, and the limits on liability for unauthorized credit transactions
that apply to the credit card account. Proposed comment 61(a)(5)(iii)(D)(5)-1 would have
provided additional detail regarding this definition. Specifically, proposed comment
61(a)(5)(iii)(D)(5)-1.i would have explained that the terms and conditions required to be
disclosed under § 1026.6(b) include: (a) pricing terms, such as periodic rates, annual percentage
rates (APRs), and fees and charges imposed on the credit account; (b) any security interests
account program without a covered separate credit feature. The Bureau took this approach in the 2016 Final Rule because it believed that many prepaid accountholders who wish to use covered separate credit features may not have other asset or credit accounts from which they can draw or transfer funds, and was concerned that prepaid account issuers might therefore inflate such load fees as a backdoor way to impose finance charges on draws from the covered separate credit feature without triggering certain restrictions on fees applicable to credit card accounts. 81 FR 83934, 84187 (Nov. 22, 2016). In contrast, the Bureau believes that competitive pressures would discourage digital wallet providers seeking to qualify for the exception in final § 1026.61(a)(5)(iii)(D) from artificially inflating all load fees in this manner. Nonetheless, the Bureau will continue to monitor this issue to ensure that concerns discussed above do not occur in relation to the exception in final § 1026.61(a)(5)(iii)(D).
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acquired under the credit account; (c) claims and defenses rights under § 1026.12(c); and (d)
error resolution rights under § 1026.13. Proposed comment 61(a)(5)(iii)(D)(5)-1.ii would have
explained that the repayment terms and conditions related to a credit card account include the
length of the billing cycle, the payment due date, any grace period on the transactions on the
account, the minimum payment formula, and the required or permitted methods for making
conforming payments on the credit card account. The Bureau notes that the limits on liability for
unauthorized use of a credit card are set forth in § 1026.12(b), and error resolution procedures
applicable to unauthorized use of an open-end credit account are set forth in § 1026.13.
Proposed comments 61(a)(5)(iii)(D)(5)-2 and 3 would have provided more detailed guidance on
application of the two conditions, as discussed below.
Same specified terms and conditions regardless of whether the credit feature is linked to
the prepaid account. As discussed above, to satisfy the condition set forth in proposed
§ 1026.61(a)(5)(iii)(D)(5), a card issuer would have been required to apply the same specified
terms and conditions to the credit card account when a consumer authorizes linking the prepaid
card to the credit card account as described in proposed § 1026.61(a)(5)(iii)(D)(2), as it applies
to the consumer’s credit card account when the consumer does not authorize such a linkage.
Proposed comment 61(a)(5)(iii)(D)(5)-2 would have provided examples of the circumstances in
which a card issuer would not meet the condition described above. Proposed comment
61(a)(5)(iii)(D)(5)-2.i would have provided that a card issuer would not satisfy this condition if
the card issuer structures the credit card account as a “charge card account” (where no periodic
rate is used to compute a finance charge on the credit card account) if the credit feature is linked
to a prepaid card, as described in proposed § 1026.61(a)(5)(iii)(D)(2), but applies a periodic rate
to compute a finance charge on the consumer’s account (and thus does not use a charge card
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account structure) if there is no such link.115 As another example, proposed comment
61(a)(5)(iii)(D)(5)-2.ii would have provided that a card issuer would not satisfy the condition if
the card issuer imposes a $50 annual fee on a consumer’s credit card account if the credit feature
is linked as described in proposed § 1026.61(a)(5)(iii)(D)(2), but does not impose an annual fee
on the consumer’s credit card account if there is no such link.
Same specified terms and conditions regardless of whether credit is accessed by the
prepaid card or the traditional credit card. For the proposed exception in proposed
§ 1026.61(a)(5)(iii)(D) to apply, proposed § 1026.61(a)(5)(iii)(D)(5) would have provided that
the card issuer must apply the same specified terms and conditions to extensions of credit from
the credit card account made with the prepaid card as with the traditional credit card. As
discussed above, under proposed § 1026.61(a)(5)(iii)(D)(1), to qualify for the proposed
exception, the credit feature must be a credit card account under an open-end (not home-secured)
consumer credit plan that a consumer can access through a traditional credit card.116
Proposed comment 61(a)(5)(iii)(D)(5)-3 would have provided several examples
illustrating the condition described above. Proposed comment 61(a)(5)(iii)(D)(5)-3.i would have
set forth examples of circumstances in which a card issuer that has an arrangement with a
prepaid account issuer would not meet the condition of proposed § 1026.61(a)(5)(iii)(D)(5)
described above. For example, proposed comment 61(a)(5)(iii)(D)(5)-3.i.A would have provided
that the card issuer would not meet this condition if it considers transactions using the traditional
credit card to obtain goods or services from an unaffiliated merchant of the card issuer as
115 The term “charge card” is defined in § 1026.2(a)(15)(iii) to mean a credit card on an account for which no periodic rate is used to compute a finance charge. 116 As discussed above, for purposes of proposed § 1026.61(a)(5)(iii)(D), proposed comment 61(a)(5)(iii)(D)(1)-1 would define the term “traditional credit card” to mean a credit card that is not a hybrid prepaid-credit card.
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purchase transactions with certain APRs, fees, and a grace period that applies to those purchase
transactions, but treats transactions involving extensions of credit using the prepaid card to
obtain goods or services from an unaffiliated merchant of the card issuer as a cash advance that
is subject to different APRs, fees, grace periods, and other specified terms and conditions. As
another example, proposed comment 61(a)(5)(iii)(D)(5)-3.i.B would have provided that the card
issuer would not satisfy this condition if it generally treats one-time transfers of credit using the
credit card account number to asset accounts as cash advance transactions with certain APRs and
fees, but treats one-time transfers of credit using the prepaid card to the prepaid account as
purchase transactions that are subject to different APRs and fees.
Proposed comment 61(a)(5)(iii)(D)(5)-3.ii would have provided guidance on how a card
issuer would have been required to meet this condition in proposed § 1026.61(a)(5)(iii)(D)(5)
with respect to the claims and defenses rights set forth in § 1026.61(c). These rights apply in
certain circumstances to purchases of property or services made with a credit card. Proposed
comment 61(a)(5)(iii)(D)(5)-3.ii would have explained that to satisfy this condition in proposed
§ 1026.61(a)(5)(iii)(D)(5) with respect to the claims and defenses rights in § 1026.12(c), the card
issuer must treat the prepaid card when it is used to access credit from the credit card account to
purchase property or services as if it is a credit card and provide the same rights under
§ 1026.12(c) as it applies to property or services purchased with the traditional credit card.
Proposed comment 61(a)(5)(iii)(D)(5)-3.iii would have provided guidance on how a card
issuer must meet this condition in proposed § 1026.61(a)(5)(iii)(D)(5) with respect to limits on
liability set forth in § 1026.12(b). Section 1026.12(b) sets forth certain limits on liability for
unauthorized use of a credit card. Proposed comment 61(a)(5)(iii)(D)(5)-3.iii would have
provided that to apply the same limits on liability for unauthorized extensions of credit from the
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credit card account using the prepaid card as it applies to unauthorized extensions of credit from
the credit card account using the traditional credit card, the card issuer must treat the prepaid
card as if it were an accepted credit card for purposes of the limits on liability for unauthorized
extensions of credit set forth in § 1026.12(b) and impose the same liability under § 1026.12(b) as
it applies to unauthorized transactions using the traditional credit card.
Comments Received
A digital wallet provider commenter requested that the Bureau remove the condition in
proposed § 1026.61(a)(5)(iii)(D)(5), while a group of consumer advocates specifically requested
that the Bureau retain this proposed condition.117
One trade association requested that the Bureau revise proposed
§ 1026.61(a)(5)(iii)(D)(5) to eliminate any suggestion that the prepaid card, as opposed to the
credit card account, extends credit. This commenter also requested that the Bureau remove
proposed comments 61(a)(5)(iii)(D)(5)-3.ii and iii, pertaining to the claims and defenses right in
§ 1026.12(c) and limits on liability for unauthorized use in § 1026.12(b) respectively. This
commenter suggested that those provisions are confusing, do not reflect consumer expectations,
and impose conditions that may not be feasible as a practical or technical matter in relation to
overdraft credit features attached to prepaid accounts that may be offered in the future. This
commenter noted that proposed comments 61(a)(5)(iii)(D)(5)-3.ii and iii require a credit card
issuer to “treat” a prepaid card offered and maintained by another company as a credit card. The
commenter indicated that a card issuer may not be able to treat the prepaid card as a credit card
because the card issuer has no control over a product offered and controlled by a different
117 The Bureau is not removing this condition for the reasons discussed in the section-by-section analysis of § 1026.61(a)(5)(iii) above.
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company, even one with whom it may have a business arrangement for other purposes. In
addition, this commenter indicated that the condition in proposed § 1026.61(a)(5)(iii)(D)(5)
should not require that the rights in § 1026.12(c) be applied to transactions where the prepaid
card was used to transfer credit to the prepaid account in the course of a transaction to purchase
goods or services with the prepaid account. The commenter raised concerns about how the
claims and defenses right in § 1026.12(c) would apply to split-tender transactions where the
prepaid transaction for the purchase of property or services is paid partly for with prepaid
account funds and partly with credit transferred from the credit card account. This commenter
asserted that it would be difficult for customers and the card issuer to identify when credit is
transferred in connection with prepaid account transaction to purchase property or services if
credit is used for only a portion of the transaction, as the amount of the prepaid account
transaction is different from the amount of the credit extension shown on the credit card
account’s monthly statement. This commenter also indicated that, in the case of a transaction
made with a prepaid card to purchase property or services, a customer who has used the prepaid
card or card number for the transaction and has a receipt reflecting the prepaid account number
and the amount of the purchase transaction, will naturally address inquiries about the transaction
to the prepaid account issuer.
The Final Rule
For the reasons set forth herein, the Bureau is adopting § 1026.61(a)(5)(iii)(D)(5) and
accompanying commentary generally as proposed with several modifications to clarify the intent
of the provisions. In final § 1026.61(a)(5)(iii)(D)(5), the Bureau is adopting the condition as
proposed that a card issuer must apply the same specified terms and conditions to the credit card
account regardless of whether the credit feature is linked to the prepaid account. In addition, the
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Bureau is adopting § 1026.61(a)(5)(iii)(D)(5) as proposed to define “specified terms and
conditions” to mean terms and conditions required to be disclosed under § 1026.6(b), any
repayment terms and conditions, and the limits on liability for unauthorized credit transactions.
The Bureau also is adopting comments 61(a)(5)(iii)(D)(5)-1 and 2 as proposed. As discussed in
more detail below, the Bureau is adopting the condition in § 1026.61(a)(5)(iii)(D)(5) requiring
the same specified terms and conditions on the credit card account regardless of whether the
credit is accessed by the prepaid card or the traditional credit card, and related comment
61(a)(5)(iii)(D)(5)-3, as proposed with some revisions to clarify the intent of the provisions.
Same specified terms and conditions regardless of whether the credit feature is linked to
the prepaid account. In adopting final § 1026.61(a)(5)(iii)(D)(5), the Bureau believes that
ensuring that the specified terms and conditions of the credit card account do not vary depending
on whether the consumer authorizes a prepaid card to access the account is important to address
a number of policy concerns. First, as discussed in the section-by-section analysis of
§ 1026.61(a)(5)(iii)(D)(2) above, the fact that the specified terms and conditions on the credit
card account would not vary based on whether the consumer authorizes the prepaid card to
access the credit card account will help simplify consumers’ decisions about account acquisition,
retention, and link authorization and make these decisions less prone to undue pressure and the
consequences of linking the two accounts less complex; thus, along with the other conditions,
this condition obviates the need for applying the 30-day waiting period in § 1026.61(c) and the
long form pre-acquisition disclosure requirements in Regulation E § 1005.18(b)(4)(vii). Second,
the condition helps to ensure that the specified terms and conditions of the prepaid account and
the credit card account operate independently of whether the two accounts are linked, and
restricts the kind of price restructuring that the Bureau observed with regard to overdraft service
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programs on checking accounts. Third, this condition prevents a card issuer from manipulating
repayment terms on the credit card account when it is linked to the prepaid account to ensure that
the consumer retains control over the funds in his or her prepaid account even if the two accounts
are linked.118
The Bureau believes that an appropriate comparison standard for determining whether the
same specified terms and conditions are provided to the consumer is to compare the specified
terms and conditions on the consumer’s account if there is a link to the prepaid account as
described above with the specified terms and conditions that apply to the consumer’s account if
there is no such link. This approach ensures that the application and solicitation disclosures
provided to the consumer under § 1026.60 with respect to the credit card account would reflect
the same specified terms and conditions regardless of whether the consumer decides to link the
two accounts, which will make consumers’ decisions about account acquisition, retention, and
link authorization simpler and less prone to undue pressure and the consequences of linking the
two accounts less complex. In addition, the Bureau believes that this comparison approach
captures situations when the specified terms and conditions vary based on whether there is a link,
118 As explained in the 2016 Final Rule, the Bureau was concerned that when a prepaid account was connected to a covered separate credit feature, the creditor may manipulate the repayment terms of the credit feature to better ensure repayment of the credit from the prepaid account funds. As a result, the 2016 Final Rule contained several provisions designed to prevent this type of manipulation. See, e.g., §§ 1026.7(b)(11) and 1026.12(d)(3), comments 5(b)(2)(ii)-4.i and 12(d)(2)-1, and Regulation E § 1005.10(e)(1). The Bureau designed these provisions to ensure that consumers retain control over the funds in their prepaid accounts even when a covered separate credit feature becomes associated with that prepaid account. See, e.g., 81 FR 83934, 83982, 84192, 84199, 84211, 84213 (Nov. 22, 2016). This condition ensures that the card issuer could not engage in this type of manipulation of repayment terms when the prepaid account is linked to the credit card account under the exception.
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but it does avoid capturing situations where specified terms and conditions vary due to
consumers’ creditworthiness.119
In final § 1026.61(a)(5)(iii)(D)(5), the condition regarding credit card account terms and
conditions is similar to the condition for prepaid account terms, conditions, and features set forth
in final § 1026.61(a)(5)(iii)(D)(4), although it applies to a smaller set of account terms.
Specifically, final § 1026.61(a)(5)(iii)(D)(4) applies to all account terms, conditions, and features
on the prepaid account while final § 1026.61(a)(5)(iii)(D)(5) applies only to “specified terms and
conditions” on the credit card account, which is defined to mean terms and conditions required to
be disclosed under § 1026.6(b), any repayment terms and conditions, and the limits on liability
for unauthorized credit transactions. This smaller set of account terms allows card issuers to
adjust credit limits or other metrics (other than the specified terms and conditions) to account for
any change in credit risk where a consumer has linked the two accounts. In addition, the Bureau
recognizes that the merchants at which the prepaid card and the traditional credit card can be
used might not necessarily be the same, and the smaller set of account terms to which the
condition in final § 1026.61(a)(5)(iii)(D)(5) applies ensures that a card issuer would not lose the
exception because of these or similar differences in account features depending on whether the
credit is accessed using the prepaid card or the traditional credit card itself.
Thus, a card issuer can satisfy final § 1026.61(a)(5)(iii)(D)(5) even if it applies different
terms or conditions to the linked credit card account than it would apply if the accounts were not
linked, so long as the those terms or conditions are not “specified terms and conditions,” as
defined in final § 1026.61(a)(5)(iii)(D)(5) and final comment 61(a)(5)(iii)(D)(5)-1. For example, 119 See note 113 above for a discussion of how this approach differs from the approach for comparing terms, conditions, and features on the prepaid account in connection with a covered separate credit feature as adopted in the 2016 Final Rule.
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a card issuer could offer different rewards points for purchases on the credit card account or offer
a different credit limit on the credit card account, depending on whether the prepaid account is
linked to the credit card account. Rewards points and the credit limit offered on the credit card
account would not be “specified terms and conditions” because these terms are not required to be
disclosed under § 1026.6(b), are not repayment terms or conditions, and are not limitations on
liability for unauthorized use.
Same specified terms and conditions regardless of whether credit is accessed by the
prepaid card or the traditional credit card. For the exception in proposed
§ 1026.61(a)(5)(iii)(D) to apply, proposed § 1026.61(a)(5)(iii)(D)(5) would have provided that
the card issuer would have been required to apply the same specified terms and conditions to
extensions of credit from the credit card account made with the prepaid card as with the
traditional credit card. The Bureau is adopting this condition as proposed with slight adjustments
to clarify that the credit is extended from the credit card account and the credit card account is
accessed by the prepaid card or the traditional credit card. Specifically, for the exception in final
§ 1026.61(a)(5)(iii)(D) to apply, final § 1026.61(a)(5)(iii)(D)(5) provides that the card issuer
must apply the same specified terms and conditions to extensions of credit from the credit card
account accessed by the prepaid card as it applies to extensions of credit accessed by the
traditional credit card. As discussed above, under final § 1026.61(a)(5)(iii)(D)(1), to qualify for
the exception, the credit feature must be a credit card account under an open-end (not home-
secured) consumer credit plan that a consumer can access through a traditional credit card. The
Bureau believes that this condition is important to address the policy concerns described above
by making consumers’ decisions about account acquisition, retention, and link authorization
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simpler and less prone to undue pressure and the consequences of linking the two accounts less
complex.120
Proposed comment 61(a)(5)(iii)(D)(5)-3 would have provided additional guidance on the
condition described above and several examples illustrating the condition. The Bureau is
adopting this comment as proposed with some modifications to clarify the intent of the
provisions. Specifically, the Bureau is modifying the heading to comment 61(a)(5)(iii)(D)(5)-3
and a sentence in the lead-in paragraph to that comment to clarify that the credit is extended from
the credit card account and the credit card account is accessed by the prepaid card or the
traditional credit card. This sentence in final comment 61(a)(5)(iii)(D)(5)-3 now provides that
for the exception in final § 1026.61(a)(5)(iii)(D) to apply, under final § 1026.61(a)(5)(iii)(D)(5),
a card issuer must not vary the specified terms and conditions on the credit card account when a
consumer authorizes linking the account with the prepaid card as described in
§ 1026.61(a)(5)(iii)(D)(2), depending on whether a particular credit extension from the credit
card account is accessed by the prepaid card or by the traditional credit card.
Proposed comment 61(a)(5)(iii)(D)(5)-3.i would have set forth two examples of
circumstances in which a card issuer that has an arrangement with a prepaid account issuer
would not meet the condition of proposed § 1026.61(a)(5)(iii)(D)(5) described above. The
Bureau is adopting comment 61(a)(5)(iii)(D)(5)-3.i as proposed with some modifications to the 120 In some cases, a card issuer may impose different terms and conditions to extensions of credit from a credit card account depending on how that credit is accessed. For example, a card issuer may impose a higher annual percentage rate on transactions made with a check that accesses the credit card account than it imposes on purchase transactions made with the credit card. In addition, the limits on liability for unauthorized use in § 1026.12(b) and the claims and defenses rights in § 1026.12(c) generally only apply to credit extended through use of a credit card, and they do not apply to credit accessed by use of a check. This condition ensures that a card issuer cannot vary the specified terms and conditions depending on whether the transactions are conducted with the linked prepaid card or the traditional credit card, which will make consumers’ decisions about account acquisition, retention, and link authorization simpler and less prone to undue pressure and the consequences of linking the two accounts less complex.
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example in comment 61(a)(5)(iii)(D)(5)-3.i.A to clarify that it covers situations where the
prepaid card is used to draw, transfer, or authorize the draw or transfer of credit from the linked
credit card account in the course of completing transactions conducted with the prepaid card to
purchase goods or services. Specifically, final comment 61(a)(5)(iii)(D)(5)-3.i.A provides that
the card issuer would not meet the condition described above if it considers transactions using
the traditional credit card to obtain goods or services from an unaffiliated merchant of the card
issuer as purchase transactions with certain APRs, fees, and a grace period that applies to those
purchase transactions, but treats credit extensions as cash advances that are subject to different
APRs, fees, grace periods, and other specified terms and conditions where the prepaid card is
used to draw, transfer, or authorize the draw or transfer of credit from the linked credit card
account in the course of authorizing, settling, or otherwise completing transactions conducted
with the prepaid card to obtain goods or services from an unaffiliated merchant of the card
issuer. The Bureau is adopting the example in comment 61(a)(5)(iii)(D)(5)-3.i.B as proposed.
Proposed comment 61(a)(5)(iii)(D)(5)-3.ii would have provided guidance on how a card
issuer would be required to meet this condition in proposed § 1026.61(a)(5)(iii)(D)(5) with
respect to the claims and defenses rights set forth in § 1026.61(c). These rights apply in certain
circumstances to purchases of property or services made with a credit card. The Bureau is
modifying comment 61(a)(5)(iii)(D)(5)-3.ii to clarify that it covers situations where the prepaid
card is used to draw, transfer, or authorize the draw or transfer of credit from the linked credit
card account in the course of completing transactions conducted with the prepaid card to
purchase goods or services.
Specifically, final comment 61(a)(5)(iii)(D)(5)-3.ii provides that to apply the same rights
under § 1026.12(c) regarding claims and defenses applicable to use of a credit card to purchase
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property or services, the card issuer must treat an extension of credit as a credit card transaction
to purchase property or services where a prepaid card is used to draw, transfer, or authorize the
draw or transfer of credit from the linked credit card account in the course of authorizing,
settling, or otherwise completing transactions conducted with the prepaid card to purchase
property or services and provide the same rights under § 1026.12(c) as it applies to property or
services purchased with the traditional credit card. This includes situations where a consumer
uses a prepaid card to make a purchase to obtain property or services from a merchant and credit
is transferred from the linked credit card account in the course of authorizing, settling, or
otherwise completing the prepaid transaction to make the purchase. For a transaction where a
prepaid card is used to obtain property or services from a merchant and the transaction is
partially paid with funds from the asset feature of the prepaid account, and partially paid with
credit from the linked credit card account, the amount of the purchase transaction that is funded
by credit would be subject to this guidance. A card issuer is not required to provide the rights
under § 1026.12(c) with respect to the amount of the transaction funded from the prepaid
account.
The Bureau is not removing comment 61(a)(5)(iii)(D)(5)-3.ii, as requested by one
industry commenter discussed above. The Bureau believes that final comment
61(a)(5)(iii)(D)(5)-3.ii, along with the other conditions set forth in the exception, is important to
address the policy concerns described above by making consumers’ decisions about account
acquisition, retention, and link authorization simpler and less prone to undue pressure and the
consequences of linking the two accounts less complex. The Bureau also does not believe that
final comment 61(a)(5)(iii)(D)(5)-3.ii imposes significant operational burdens on digital wallet
providers or card issuers in order to take advantage of the exception in final
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§ 1026.61(a)(5)(iii)(D). The Bureau believes that with respect to digital wallet transactions,
payment networks currently are identifying when credit is transferred from a linked credit card
account to the digital wallet in the course of completing a transaction with the digital wallet to
purchase goods or services, and card issuers currently are applying the claims and defenses rights
in § 1026.12(c) to these credit transactions. Therefore, they should be able to comply with this
provision with minimal additional burden.
Proposed comment 61(a)(5)(iii)(D)(5)-3.iii would have provided guidance on how a card
issuer must meet the condition in proposed § 1026.61(a)(5)(iii)(D)(5) described above with
respect to limits on liability set forth in § 1026.12(b). Section 1026.12(b) sets forth certain limits
on liability for unauthorized use of a credit card. The Bureau has made modifications to this
comment to clarify the intent of the provision. Specifically, final comment 61(a)(5)(iii)(D)(5)-
3.iii provides that, to apply the same limits on liability for unauthorized extensions of credit from
the credit card account using the prepaid card as it applies to unauthorized extensions of credit
from the credit card account using the traditional credit card, the card issuer must treat an
extension of credit accessed by the prepaid card as a credit card transaction for purposes of the
limits on liability for unauthorized extensions of credit set forth in § 1026.12(b) and impose the
same liability under § 1026.12(b) to this credit extension as it applies to unauthorized
transactions using the traditional credit card.
The Bureau is not removing comment 61(a)(5)(iii)(D)(5)-3.iii, as requested by one
industry commenter. The Bureau believes that final comment 61(a)(5)(iii)(D)(5)-3.iii, along
with the other conditions set forth in the exception, is important to address the policy concerns
described above by making consumers’ decisions about account acquisition, retention, and link
authorization simpler and less prone to undue pressure and the consequences of linking the two
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accounts less complex. The Bureau also does not believe that final comment 61(a)(5)(iii)(D)(5)-
3.iii imposes significant operational burdens on digital wallet providers or card issuers in order to
take advantage of the exception in final § 1026.61(a)(5)(iii)(D). The Bureau believes that, with
respect to digital wallet transactions, payment networks currently are identifying when credit is
transferred from a linked credit card account to the digital wallet, and card issuers currently are
applying the limits on liability in § 1026.12(b) to these credit transactions.
Regulation Z Technical Corrections
The Bureau is making technical corrections to several provisions of the Prepaid Accounts
Rule in Regulation Z, which are not intended to change the meaning of the Prepaid Accounts
Rule. Specifically, the Bureau is correcting cross-references in comments 52(b)(2)(i)-7
(changing “§ 1026.52(a)(2)(i)(B)(1)” to “§ 1026.52(b)(2)(i)(B)(1)”), 61(a)(3)(i)-1.ii (changing
“comment 61(a)(2)(i)-1.iv” to “comment 61(a)(3)(i)-1.iv”),121 61(a)(4)(ii)(A)-4 (changing
“§ 1026.61(a)(4)(iii)(A)” to “§ 1026.61(a)(4)(ii)(A)”), and 61(a)(4)(ii)(B)(1)-1.i.B and ii.A
(changing “§ 1026.61(a)(4)(A)(ii)(2)” to “§ 1026.61(a)(4)(ii)(A)(2)”); and correcting a
typographical error in comments 6(b)(3)(iii)(D)-1 introductory text and 61(b)-2 (changing
“assessed” to “accessed”). The Bureau is also adding a heading in commentary for Paragraph
61(a)(4)(ii).
VI. Effective Date
As discussed below, the Bureau is extending the overall effective date of the Prepaid
Accounts Rule to April 1, 2019, including the requirement to submit prepaid account agreements
to the Bureau. This final rule adopting certain changes to the Prepaid Accounts Rule will
121 Conforming changes related to the expanded negative balance exception are also being made in comment 61(a)(3)(i)-1.ii. See note 103 in the section-by-section analysis of § 1026.61(a)(4) above.
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become effective 30 days after publication in the Federal Register, prior to the previous April 1,
2018 effective date and consistent with section 553(d) of the Administrative Procedure Act.122
A. Effective Date of the Prepaid Accounts Rule
The Bureau’s Proposal
While the Bureau did not propose a further extension of the effective date of the Prepaid
Accounts Rule in the June 2017 Proposal, the Bureau solicited comment on whether a further
delay of the effective date would be necessary and appropriate in light of the specific
amendments proposed therein. The Bureau also solicited comment on which provisions in
particular might cause financial institutions to need additional time, whether any further
modifications to any of the particular amendments proposed therein would reduce or eliminate
that need, and the appropriate length of such a further delay.
Comments Received
A group of consumer advocates urged the Bureau not to delay the effective date of the
rule any further. These commenters stated that the Prepaid Accounts Rule represents a long-
awaited step towards ensuring consumer access to safe financial products, and argued that the
Bureau had sufficiently solicited feedback and made accommodations to industry where it was
necessary, specifically citing the changes the Bureau proposed in the June 2017 Proposal.
Industry commenters, including trade associations, issuing banks, program managers, and
others, as well as a think tank, generally advocated for the Bureau to consider a further extension
of the effective date. Some of these commenters suggested extensions of varying lengths, while
others did not suggest a particular length of time in their comments. Of those that suggested a
122 5 U.S.C. 553(d).
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specific length, some recommended that the Bureau adopt a specific effective date, ranging from
October 1, 2018 to January 1, 2020. Other commenters suggested that the new effective date
should depend on the publication date of this final rule, generally arguing for an effective date of
12 to 18 months after publication.
Regardless of the specific length of time requested for an extension, commenters
requesting an extension offered similar arguments in support of their request for more time.
Generally speaking, these commenters argued that once the Bureau issued this final rule,
industry would need to review and analyze it, coordinate with internal and external parties to
create a compliance plan, and implement the plan. Some commenters suggested that the
amendments proposed by the Bureau in the June 2017 Proposal diverged significantly from the
requirements of the 2016 Final Rule and, if adopted, implementing them would require
additional compliance time. Specifically, some commenters raised concerns that any required
changes to retail packaging would take significant time to implement, given the significant
number of vendors and other outside companies involved in that process. Several commenters
also referenced the “freeze” period many prepaid account programs are subject to during the
winter holiday season that would make it difficult to adopt the sorts of changes contemplated by
the Prepaid Accounts Rule and the June 2017 Proposal during that time. The level of detail
regarding the extent of these logistical challenges varied by commenter. One trade association
and one program manager provided detailed timelines regarding implementation; these
commenters requested that the Bureau extend the effective date to April 1, 2019.
A digital wallet provider specifically argued that, if the Bureau did not address certain
issues relating to negative balances on prepaid accounts linked to credit cards, it would need
additional time to develop systems to address those situations. As discussed in the section-by-
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section analysis of § 1026.61(a)(4) above, the Bureau believes that the final rule addresses those
concerns such that this commenter would not need to modify its systems in the way described in
its comment letter.
In addition, commenters raised other specific points that they contended warranted a
further extension of the effective date. Two trade associations and a business advocacy group
argued that, even if the Bureau had not proposed further changes to the Prepaid Accounts Rule,
an effective date of April 1, 2018 still gave insufficient time for industry to implement the rule.
One of the trade associations based its argument in part on an assertion that, notwithstanding the
Bureau’s decision to allow financial institutions to sell through packaging manufactured in the
normal course of business prior to the effective date, continuing to sell prepaid accounts with
out-of-date packaging and disclosures that no longer describe how the product will work could
lead to consumer confusion or expose institutions to potential charges from the Federal Trade
Commission or State attorneys general for unfair, deceptive, or abusive practices.123 This
commenter suggested that extending the effective date by an additional six months would allow
institutions, who decide to pull and replace current stock, to exhaust and replenish their
inventory.
A trade association representing technology companies suggested that the Bureau should
take additional time to review the Prepaid Accounts Rule and make changes to the rule,
particularly to exempt digital wallets from the rule. A trade association representing the prepaid
123 It is unclear, based on this comment letter, whether the trade association or its members believe that this concern persists given the changes the Bureau proposed (and is finalizing) regarding error resolution and limited liability for unverified prepaid accounts.
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industry argued that additional time was required to allow industry to implement additional
changes necessitated by the Bureau’s rule regarding pre-dispute arbitration agreements.124
Most commenters’ requests for further extensions of the effective date were based on
their estimates of how long it would take them to comply with the Prepaid Accounts Rule, as
amended by this final rule. However, some commenters pointed to other factors. For example,
one trade association argued that combining the rule’s general effective date with the effective
date of the requirement for prepaid account issuers to submit their agreements to the Bureau
would reduce confusion arising from multiple dates, and suggested making both dates October 1,
2018. Several industry commenters, in requesting that the Bureau extend the effective date by
another year, to April 1, 2019, argued that an April effective date would avoid disruption and the
diversion of critical resources during the holiday period, during which, they said, it is often
difficult for industry to make significant changes to prepaid account programs. Another trade
association suggested that it would take until January 1, 2020 for the Bureau to address the issues
raised in the June 2017 Proposal and for industry to comply with any resulting changes.
The Final Rule
For the reasons set forth herein, the Bureau believes it is necessary and appropriate to
extend the general effective date of the Prepaid Accounts Rule by an additional 12 months, to
April 1, 2019. The Bureau is likewise extending the effective date of § 1005.19(b) for the
124 82 FR 33210 (July 19, 2017). On November 1, 2017, the President signed a joint resolution passed by Congress disapproving the Arbitration Agreements Rule under the Congressional Review Act. See 82 FR 55500 (Nov. 22, 2017). Pursuant to the joint resolution, the Arbitration Agreements Rule has no force or effect. Public Law 115-74. This disapproval resolution was signed well before March 19, 2018, when compliance would have been required under the arbitration rule. Thus, the Bureau believes that this trade association should have no further concern that the Bureau’s arbitration rule creates a need for a further delay of the Prepaid Accounts Rule’s effective date.
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agreement submission requirement to April 1, 2019. The rule will thus have one effective date,
April 1, 2019, for all of its provisions.
The Bureau acknowledges that the amendments regarding error resolution and limited
liability protections on unverified prepaid accounts may require some financial institutions to
change language on or in retail packaging. This may be particularly true for those financial
institutions that will not offer error resolution and limited liability protections on unverified
prepaid accounts but will allow consumers to use them.125 These financial institutions may thus
need to modify the initial disclosures contained in their retail packaging to include the revised
model language in Appendix A-7(c), and put that revised packaging into production by the
Prepaid Accounts Rule’s effective date. The Bureau appreciates that in some circumstances
these changes may be difficult to accomplish by April 1, 2018, and thus believes that a further
extension of the effective date is appropriate. The Bureau notes that these revisions do not
require wholesale changes to the pre-acquisition disclosures required by the rule. Rather, they
involve replacing one set of model disclosure language with another set of model disclosure
language. Thus, the Bureau does not believe that these changes should require the multiple
rounds of extensive legal review and redesign of packaging suggested by some commenters.
However, the Bureau appreciates concerns raised by industry regarding the limited availability of
retail packaging manufacturers, particularly during a period when a large number of financial
institutions will be making design changes simultaneously. The Bureau believes that the new
effective date will also significantly mitigate concerns expressed by commenters relating to
125 These concerns are discussed in detail in the section-by-section analysis of § 1005.18(e)(3) above.
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potential charges of unfair, deceptive, or abusive practices, by allowing additional time to print
compliant packaging material and sell through existing stock.
The Bureau notes that the other revisions to the Prepaid Accounts Rule adopted in this
final rule do not generally impose new obligations on financial institutions and other participants
in the prepaid industry. Rather, as discussed in detail in the section-by-section analysis of part V
above, these amendments generally relieve burden, provide industry with additional flexibility in
complying with the rule, or clarify provisions that were identified as being potentially
ambiguous. Thus, the Bureau does not believe that these other revisions in the final rule should
significantly increase the amount of time that industry will need to comply with the rule, even if
some additional time is needed to modify systems for entities that wish to take full advantage of
the additional flexibility provided by the amendments in this final rule.
However, given the concerns raised by industry regarding the time needed to comply
with the Prepaid Accounts Rule, including the amendments finalized herein, the Bureau believes
that a further extension of the effective date to April 1, 2019 is sufficient for industry to comply
with the rule. Given the compliance concerns raised by commenters and the timing of this final
rule, the Bureau is concerned that a six month extension of the effective date (to October 1,
2018) suggested by some commenters may not provide enough time, particularly as several
commenters suggested that date assuming that this final rule would be issued in the fall of 2017.
As noted by several commenters, an effective date during the winter holiday season would likely
create significant complications for industry, given the common “freeze” period many prepaid
account programs are subject to during that time of year. Thus, the Bureau believes that it is
appropriate to provide an additional year for industry to comply with the Prepaid Accounts Rule,
as amended by this final rule. Extending the effective date of the Prepaid Accounts Rule to April
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1, 2019 will ensure that industry has sufficient time to implement the rule while also ensuring
that consumers maintain access to prepaid accounts during the implementation period and after
the rule’s effective date.
To implement this effective date delay, the Bureau is making conforming changes in
§§ 1005.18(b)(2)(ix)(D), (h), and 1005.19 and the commentary accompanying
§ 1005.18(b)(2)(ix)(D) and (E), and (h), and removing the commentary that accompanied
§ 1005.19(f).126
The Bureau will continue its efforts to support industry implementation of the Prepaid
Accounts Rule, as amended by this final rule, including by monitoring industry’s implementation
efforts, and expects that continued engagement and dialogue will assist industry in complying
with the rule.
B. Safe Harbor for Early Compliance
The Bureau’s Proposal
In response to the 2017 Effective Date Proposal, two trade association commenters urged
the Bureau to establish a safe harbor for financial institutions that comply with the Prepaid
Accounts Rule (or portions of it) prior to the rule’s effective date. These commenters were
concerned that financial institutions may be exposed to potential liability if they comply early,
suggesting the possibility that there may be some conflict between the Prepaid Accounts Rule
and current requirements for payroll card accounts and government benefit accounts, though
these commenters did not provide any specific examples. In response to those concerns, in the
2017 Effective Date Final Rule as well as the June 2017 Proposal, the Bureau noted its
126 See also the section-by-section analyses of §§ 1005.18(b)(2)(ix)(D), (h), and 1005.19(f) above for additional discussion regarding these changes.
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agreement that early compliance could benefit both industry and consumers, and stated that it
was not aware of any conflicts between the requirements of the Prepaid Accounts Rule and
current Federal regulations applying to accounts that will be covered by the rule.127 Thus, while
the Bureau did not propose language for a specific provision addressing early compliance with
the Prepaid Accounts Rule, the Bureau sought comment on whether a specific provision
addressing early compliance with the Prepaid Accounts Rule would be necessary and appropriate
to address conflicts between the Prepaid Accounts Rule and current Federal requirements for
accounts that will be covered by the rule.
Comments Received
Several industry trade association commenters and a think tank requested that the Bureau
provide a safe harbor to ensure that early compliance with the Prepaid Accounts Rule will not
expose financial institutions to liability, although commenters did not put forth specific theories
of liability.128 Two trade associations representing credit unions contended that, because the
Prepaid Accounts Rule makes numerous changes to existing rules, compliance with the new rule
in advance of the effective date could lead to financial institutions being targeted as non-
compliant with the existing rules. A trade association representing the prepaid industry
suggested that issuers could face potential liability stemming from a private action, alleging that
financial institutions that change their disclosures to comply with the rule early would be
noncompliant with the current version of Regulation E. The Bureau specifically solicited
127 Regulation E, for example, currently contains protections for consumers who use payroll card accounts and certain government benefit accounts, as well as consumers who use certain gift cards and similar products. See §§ 1005.18, 1005.15, and 1005.20, respectively. Regulations promulgated by the Department of the Treasury also require prepaid cards that are eligible to receive Federal payments to comply with the rules governing payroll card accounts, among other requirements. 31 CFR 210.5(b)(5)(i). 128 With one exception described below, these commenters requested a safe harbor that would apply to all accounts covered by the Prepaid Accounts Rule, not just payroll card and government benefit accounts.
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comment on whether specific provisions of current requirements for such accounts conflict with
provisions of the Prepaid Accounts Rule; however, with one exception described below,
commenters did not identify any specific provisions of current legal requirements for payroll
card accounts, government benefit accounts, or any other types of prepaid accounts that they
believed conflict with provisions of the Prepaid Accounts Rule.129
One trade association identified what it described as inconsistencies between current
rules for government benefit accounts under Regulation E and the Prepaid Accounts Rule, in
cases where the government agency elects to take advantage of the respective provisions in the
current rules and the Prepaid Accounts Rule allowing for an alternative to providing a periodic
statement.130 The trade association asserted that three specific provisions that apply to
government agencies using the periodic statement alternative presented inconsistencies: currently
effective § 1005.15(d)(4) and revised § 1005.15(e)(4) in the Prepaid Accounts Rule, which
pertain to error resolution time limits;131 currently effective § 1005.15(d)(2) and revised
129 The Bureau also solicited comment regarding whether a specific provision addressing early compliance should only be available to financial institutions that comply with the entire Prepaid Accounts Rule prior to its effective date, or whether it should also cover financial institutions that comply with portions of the Prepaid Accounts Rule prior to its effective date. The Bureau received no comments on this issue. 130 Under currently effective § 1005.15(c), a government agency need not furnish the periodic statement required by § 1005.9(b) if the agency makes available to the consumer: the consumer’s account balance, through a readily available telephone line and at a terminal; and a written history of the consumer’s account transactions that is provided promptly in response to an oral or written request and that covers at least 60 days preceding the date of a request by the consumer. Under the 2016 Final Rule’s version of § 1005.15(d), a government agency need not furnish the periodic statement if the agency makes available to the consumer: the consumer’s account balance, through a readily available telephone line and at a terminal; an electronic history of the consumer’s account transactions, such as through a website, that covers at least 12 months preceding the date the consumer electronically accesses the account; and a written history of the consumer’s account transactions that is provided promptly in response to an oral or written request and that covers at least 24 months preceding the date the agency receives the consumer’s request. 131 With respect to error resolution time limits, the commenter noted that, under currently effective § 1005.15(d)(4), a government agency is required to comply with Regulation E’s error resolution requirements in response to an oral or written notice of an error from the consumer that is received no later than 60 days after the consumer obtains the written account history or other account information in which the error is first reflected. The 2016 Final Rule, in § 1005.15(e)(4), provides that an agency is required to comply with the error resolution requirements in response to
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§ 1005.15(e)(2), which pertain to delivery of the annual error resolution notice;132 and currently
effective § 1005.15(d)(3) and revised § 1005.15(e)(3), which pertain to time limits for limitations
on consumers’ liability.133 The commenter expressed concern that financial institutions and
government agencies that comply with the Prepaid Accounts Rule’s version of these provisions
prior to the effective date would not be in compliance with current Regulation E, and thus argued
that such financial institutions and government agencies should be provided with a safe harbor.
The Final Rule
The Bureau continues to believe that early compliance may benefit both industry and
consumers. However, after having carefully considered the issue as described below, the Bureau
does not believe that a specific provision for early compliance with the Prepaid Accounts Rule is
warranted.
an oral or written notice of an error from the consumer that is received no later than 60 days after the consumer electronically accesses the consumer’s account (provided that the history made available reflects the error), or the agency sends a written history of the consumer’s transactions in which the error is first reflected. Alternatively, an agency may comply by investigating any oral or written notice of error received within 120 days after the transfer allegedly in error was credited or debited to the consumer’s account. 132 The commenter noted that the 2016 Final Rule’s version of § 1005.15(e)(2) allows agencies to provide on or with each electronic or written history a notice substantially similar to the abbreviated notice for periodic statements contained in Appendix A-3(b), as an alternative to the current requirement of providing an annual notice concerning error resolution that is substantially similar to the notice contained in Appendix A-5(b). 133 With respect to limited liability, the issue raised by the commenter was essentially the same as for error resolution: namely, the timelines that would apply for financial institutions that make use of the periodic statement alternative. Specifically, the commenter noted that under currently effective § 1005.15(d)(3), for purposes of § 1005.6(b)(3) (which generally provides that a consumer must report an unauthorized EFT that appears on a periodic statement within 60 days of the financial institution’s transmittal of the statement to avoid liability for subsequent transfers), the 60-day period begins with transmittal of a written account history or other account information provided to the consumer under § 1005.15(c). Under the 2016 Final Rule’s version of § 1005.15(e)(3)(i), the commenter noted, the 60-day period begins on the earlier of the date the consumer electronically accesses the consumer’s account, provided the electronic history made available reflects the unauthorized transfer; or the date the agency sends a written history in which the unauthorized transfer is first reflected. Section 1005.15(e)(3)(ii) further provides that an agency may comply with this provision by limiting the consumer’s liability for any transfer reported by the consumer within 120 days after the transfer was credited or debited to the consumer’s account.
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Specifically, the Bureau considered early compliance issues with regard to two separate
types of products that will be subject to the Prepaid Accounts Rule: those that are not currently
covered by Regulation E, and those that are (namely, payroll card accounts and government
benefit accounts, as well as cards receiving Federal payments via a Treasury rule that requires
compliance with the payroll card rules in Regulation E).134 For accounts not currently subject to
Regulation E, a safe harbor for early compliance is neither necessary nor appropriate because
current Federal law does not contain any obligations that conflict with the provisions of the
Prepaid Accounts Rule. For accounts currently subject to Regulation E, neither commenters nor
the Bureau have identified any affirmative requirements in current regulations that would
conflict with affirmative requirements in the Prepaid Accounts Rule, and thus the Bureau does
not believe that a safe harbor for early compliance is either necessary or appropriate for these
products either.135 This is consistent with the Bureau’s approach in other rulemakings, where the
Bureau has sometimes included in regulatory text specific provisions regarding early compliance
in situations where compliance with a new regulation would cause a person to be noncompliant
with a current regulation.136 (For example, if a current rule requires a person to provide
disclosure form A and only disclosure form A and a new rule requires disclosure form B, without
a provision to address early compliance that person may be in violation of the current rule by
providing disclosure form B in advance of the effective date.)
134 31 CFR 210.5(b)(5)(i). 135 For example, the Bureau understands that many financial institutions currently offer error resolution and limited liability protections on prepaid accounts that are equivalent to or greater than the parallel provisions of Regulation E. They are thus in partial early compliance with the rule. 136 For example, the Bureau provided for an optional early compliance period for amendments to its mortgage disclosure rules in part because the amendments clarified potential ambiguity in the rule, and the Bureau determined that some creditors may have already complied with the amendments, for various reasons. 82 FR 37656, 37763-64 (Aug. 11, 2017).
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With respect to the examples offered by one commenter relating to government benefit
accounts, the Bureau believes that agencies and other financial institutions that move to early
compliance with the Prepaid Accounts Rule would only be out of compliance with existing rules
in two extraordinarily narrow circumstances that could easily be avoided by appropriate action
during the transition period.137 Moreover, these are not situations in which the Prepaid Accounts
Rule requires entities to do something that is prohibited under the existing regulations; rather,
compliance with the existing rule remains permissible under the Prepaid Accounts Rule, while
the Prepaid Accounts Rule will provide certain additional compliance options that are not
available under current regulations. Given how narrow the circumstances at issue are and how
easy it would be for any agencies that choose to adopt early compliance to manage the transition
period, the Bureau is not persuaded that a specific provision for early compliance with the
Prepaid Accounts Rule’s version of § 1005.15 is either necessary or appropriate.
The Bureau believes that rewriting the Prepaid Accounts Rule to allow industry to take
advantage of the additional compliance options it permits in these two narrow circumstances
before April 1, 2019 would be unduly complex, and that both industry and consumers will be
best served by maintaining the same effective date for all prepaid accounts. In particular, to take
advantage of the additional compliance options in the context of government benefit accounts,
137 If an agency chooses to implement the Prepaid Accounts Rule’s version of the periodic statement alternative prior to the rule’s effective date, it would be out of compliance with the currently-effective version of Regulation E only if a consumer reported an unauthorized transaction or other error on a government benefit account that was inside the currently effective rule’s timelines but outside the Prepaid Accounts Rule’s timelines, and the financial institution elected to reject the claim as outside the reporting timeframes. (This could happen if a disputed transaction occurs on a date that is more than 60 days after the consumer first accessed the electronic account transaction history on which the error appeared, but which is less than 60 days after the date the agency sends to the consumer a written history of the consumer’s account transactions at the consumer’s request in which the error first appears.) Similarly, an agency may comply with both the existing and new annual error resolution notice requirements by sending an annual error resolution notice. It would be out of compliance with current Regulation E only if it failed to provide an annual error resolution notice under currently-effective § 1005.15(e)(2) prior to April 1, 2019.
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financial institutions would need to be in full compliance with the Prepaid Accounts Rule’s
periodic statement alternative (on which the modified timing requirements are based) as well;
initial disclosures regarding access to account information and error resolution/limited liability
protections would also be implicated. Providing a safe harbor in this instance would thus
necessitate an earlier effective date for the portions of the rule governing government benefit
accounts coupled with a subsequent mandatory compliance date; the Bureau believes such an
approach would be complicated, cause industry confusion, and run contrary to the Bureau’s
intentions in further extending the Prepaid Accounts Rule’s overall effective date to April 1,
2019.
At the same time, the Bureau does not believe that the lack of a specific provision for
early compliance imposes a burden on financial institutions, including government agencies, as
the only cost to those entities will be delaying the date on which they activate systems that
permit error resolution and limited liability claims to be resolved under the new timeframes
established by the Prepaid Accounts Rule and cease to send annual error resolution notices in
lieu of providing electronic and written account histories with such notices.138 Nothing in the
current regulation will prevent institutions from making available electronic account transaction
histories in advance of the Prepaid Accounts Rule’s new effective date; the Bureau notes that, in
fact, many government benefit account programs currently offer electronic account transaction
138 The Bureau notes that, to the extent government agencies have obtained the proper consent to deliver periodic statements electronically, government benefit accounts will be governed by the general limited liability and error resolution provisions of §§ 1005.6 and 1005.11, rather than the periodic statement alternative of currently effective § 1005.15.
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histories.139 Agencies and institutions simply may not resolve errors or limit liability using the
Prepaid Accounts Rule’s modified timelines based on accessing electronic account transaction
history, or provide abbreviated error resolution notices on electronic and written account
transaction histories in lieu of sending the annual notice, until the Prepaid Accounts Rule goes
into effect. The Prepaid Accounts Rule’s amendments to § 1005.15(d) and (e) were intended to
more closely align the periodic statement alternative for government benefit accounts with the
alternative for other prepaid accounts.140 The Bureau does not believe that making significant
revisions to the rule’s effective date provisions to accommodate a rare and easily-avoided
compliance concern would be in the best interest of industry or consumers.
As noted above, aside from this minor issue, the Bureau believes that early compliance
with the Prepaid Accounts Rule may benefit both industry and consumers. The Bureau will
continue its outreach to industry over the course of the implementation period to understand
industry’s ongoing experience in implementing the Prepaid Accounts Rule and monitor whether
other concerns arise regarding perceived conflicts between current regulations and the Prepaid
Accounts Rule.
VII. Section 1022(b)(2)(A) of the Dodd-Frank Act
In developing this final rule, the Bureau has considered the potential benefits, costs, and
impacts as required by section 1022(b)(2) of the Dodd-Frank Act. Specifically, section
1022(b)(2) calls for the Bureau to consider the potential benefits and costs of a regulation to
consumers and covered persons, including the potential reduction of consumer access to
139 For example, all 65 of the government benefit account agreements reviewed by the Bureau in its 2014 Study of Prepaid Account Agreements indicated that at least 60 days of electronic access to account information was available. Study of Prepaid Account Agreements at 18 tbl. 5 and 19 tbl. 6 (Nov. 2014). 140 81 FR 83934, 84000 (Nov. 22, 2016).
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consumer financial products or services, the impact on depository institutions and credit unions
with $10 billion or less in total assets as described in section 1026 of the Dodd-Frank Act, and
the impact on consumers in rural areas. In addition, 12 U.S.C. 5512(b)(2)(B) directs the Bureau
to consult, before and during the rulemaking, with appropriate prudential regulators or other
Federal agencies regarding consistency with the objectives those agencies administer. The
Bureau consulted, or offered to consult with, the prudential regulators, the Department of the
Treasury, the Securities and Exchange Commission, and the Federal Trade Commission
regarding consistency with any prudential, market, or systemic objectives they administer.
The baseline141 for this discussion is the market for prepaid accounts as it would exist
“but for” this final rule. That is, the Bureau evaluates the benefits, costs, and impacts of this
final rule on consumers and covered persons relative to the baseline established by the Prepaid
Accounts Rule.142 The discussion below covers the major provisions in this final rule as well as
certain alternatives that the Bureau considered.
The major provisions of this final rule addressed in this discussion include:
Amending the Prepaid Accounts Rule to provide that Regulation E’s error resolution and
limited liability requirements do not extend to prepaid accounts that have not successfully
completed the financial institution’s consumer identification and verification process;
Creating a limited exception to the credit-related provisions of the Prepaid Accounts Rule
by narrowing the Prepaid Accounts Rule’s definition of “business partner” in Regulation
141 The Bureau has discretion in any rulemaking to choose an appropriate scope of analysis with respect to potential benefits, costs, and impacts and an appropriate baseline. 142 As discussed above, the Bureau refers to the 2016 Final Rule, as amended by the 2017 Effective Date Final Rule, as the Prepaid Accounts Rule. The Bureau previously considered the benefits, costs, and impacts of the major provisions of both the 2016 Final Rule and the 2017 Effective Date Final Rule. See 81 FR 83934, 84269 (Nov. 22, 2016); 82 FR 18975, 18979 (Apr. 25, 2017).
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Z so that it no longer includes certain arrangements between prepaid account issuers and
credit card issuers that offer traditional credit card products;143
No longer considering incidental credit extended through a negative balance on a prepaid
account to be subject to Regulation Z where a covered separate credit feature offered by a
business partner is attached to the prepaid account, provided certain conditions are met;
and
Extending the overall effective date of the Prepaid Accounts Rule to April 1, 2019.
In addition to these changes, the Bureau is making clarifications and minor adjustments
to certain other discrete aspects of the Prepaid Accounts Rule. Like the major provisions
discussed, these clarifications and minor adjustments will provide industry participants with
additional options for compliance and should not increase burden on covered persons. In
addition, the Bureau does not believe that this final rule’s minor modifications to the Prepaid
Accounts Rule’s disclosure requirements will appreciably decrease transparency or have an
adverse impact on informed consumer choice.144
In considering the relevant potential benefits, costs, and impacts of this final rule, the
Bureau has applied its knowledge and expertise concerning consumer financial markets.
143 Although a credit card account is subject to the credit card provisions of Regulation Z in its own right if the account and the arrangement between the prepaid account issuer and credit card account issuer meet all conditions for this exception, it will not be subject to the provisions in Regulation Z that apply only to covered separate credit features accessible by a hybrid prepaid-credit card. In addition, the prepaid account with which it is linked will not be subject to the provisions in Regulation E that apply only to prepaid accounts connected to covered separate credit features. 144 For example, revised § 1005.18(b)(1)(ii)(D) allows financial institutions offering prepaid accounts that qualify for the retail location exception in § 1005.18(b)(1)(ii) to satisfy the requirement that they provide the long form disclosure after acquisition by delivering such disclosure electronically without receiving consumer consent under the E-Sign Act in cases where the financial institution does not provide the long form disclosure inside the prepaid account packaging material and does not otherwise mail or deliver to the consumer written account-related communications within 30 days of obtaining the consumer’s contact information.
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Although the Bureau did not receive comments specific to its consideration of the benefits, costs,
and impacts of the June 2017 Proposal, the Bureau has considered the comments on the
substantive proposal in considering the relevant potential benefits, costs, and impacts of this final
rule. Because the Prepaid Accounts Rule is not yet in effect and this final rule addresses
potential impacts of the Prepaid Accounts Rule on some industry participants for a subset of their
prepaid accounts, this discussion of the potential benefits, costs, and impacts on consumers and
covered persons, evaluated relative to the baseline established by that rule, is largely qualitative.
This final rule generally decreases the burden incurred by industry participants and
provides covered persons with more options for complying with the provisions of the Prepaid
Accounts Rule. As described in more detail below, the Bureau does not believe that this final
rule’s provisions will reduce consumer access to consumer financial products and services. In
particular, the provisions relating to error resolution and limited liability for unverified accounts
may increase consumer access to consumer financial products and services relative to the
baseline established by the Prepaid Accounts Rule.
Error resolution and limited liability for unverified accounts. The Bureau is revising
§§ 1005.11(c)(2)(i), 1005.18(d)(1)(ii) and (e)(3), comments 18(e)-4 through 6, and Appendix A-
7(c) to provide that Regulation E’s error resolution and limited liability requirements do not
extend to prepaid accounts that have not successfully completed the financial institution’s
consumer identification and verification process (i.e., accounts that have not concluded the
process, accounts where the process is concluded but the consumer’s identity could not be
verified, and accounts in programs for which there is no such process).145 The Bureau is also
145 Given current business practices, the Bureau believes that this amendment will predominately affect financial institutions distributing prepaid accounts to consumers through the retail channel.
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making related changes to model disclosure language. In addition, the Bureau is requiring that,
for accounts in programs where there is no verification process, financial institutions either
explain in their initial disclosures their error resolution process and limitations on consumers’
liability for unauthorized transfers, or explain that there are no such protections, and that such
institutions comply with the process (if any) that they disclose.
Covered persons will avoid the burdens associated with providing Regulation E’s error
resolution and limited liability protections for those prepaid accounts held by consumers who
have not successfully completed the consumer identification and verification process.146 The
Bureau considered the costs associated with providing error resolution and limited liability
protections in its section 1022(b)(2) discussion for the 2016 Final Rule.147 Potential sources of
burden include, among other things, receiving oral or written error claims, investigating error
claims, providing consumers with investigation results in writing, responding to consumer
requests for copies of the documents that the financial institution relied on in making its
determination, and correcting any errors discovered within the required timeframes.
During the Bureau’s outreach efforts to industry regarding implementation and in
comments submitted on the June 2017 Proposal, industry participants expressed concern that
offering error resolution and limited liability protections for holders of unverified accounts, in
particular, would significantly increase fraud risk. These industry participants mentioned various
changes in functionality or processes that could mitigate this risk. For example, commenters
asserted that financial institutions would limit pre-verification functionality on accounts. In pre-
146 Covered persons that choose not to offer Regulation E error resolution and limited liability protections for unverified prepaid accounts will need to disclose which protections they do offer or that they do not offer such protections, and comply with any such protections they disclose. 147 81 FR 83934, 84292 (Nov. 22, 2016).
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proposal outreach, some financial institutions told the Bureau that they believed that they would
need to replace retail packaging to accurately reflect this decreased functionality,
notwithstanding the Bureau’s decision to allow financial institutions to use non-compliant
packaging manufactured in the normal course of business prior to the effective date. In pre-
proposal outreach and in response to the June 2017 Proposal, industry representatives suggested
that financial institutions may issue paper checks to consumers holding unverified accounts in
various scenarios, including when a consumer fails the verification process (instead of allowing
the consumer to spend down the balance) and when a transaction on an unverified account is
disputed (to decrease the likelihood that further errors are asserted on the account).
In addition to the direct cost associated with investigating errors and providing funds in
response to claims by holders of unverified accounts, covered persons, under the requirements of
the 2016 Final Rule, would incur costs in changing account functionality or refund processes.
By amending the Prepaid Accounts Rule’s requirement that financial institutions resolve errors
and limit consumers’ liability pursuant to Regulation E to exclude those prepaid accounts, other
than payroll card accounts or government benefit accounts, for which the consumer identification
and verification process has not been completed, this final rule will allow covered persons to
avoid such costs.
Consumers holding or desiring to hold unverified prepaid accounts may both derive
benefits and incur costs from this final rule’s provisions relative to those benefits and costs they
would experience were the baseline requirements established by the Prepaid Accounts Rule in
force. Under this final rule, consumers holding unverified accounts will no longer be assured the
benefits arising from the Prepaid Accounts Rule’s error resolution and limited liability
protections. However, if absent this final rule, financial institutions would have attempted to
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mitigate potential fraud losses by not offering unverified prepaid accounts, consumers desiring to
hold unverified accounts would have lost access to such products altogether. In such a scenario,
consumers desiring to hold unverified prepaid accounts would be forced to choose a less-desired
alternative and would not have enjoyed any of the benefits arising from the Prepaid Accounts
Rule’s consumer protections (unless that alternative product was a verified prepaid account).
Alternatively, if financial institutions would have responded to the Prepaid Accounts Rule’s
requirement that unverified prepaid accounts offer error resolution and limited liability
protections by decreasing the functionality associated with such accounts, this final rule will
enable current and future accountholders to retain current functionality on unverified accounts,
though they will not enjoy the error resolution and limited liability protections of the Prepaid
Accounts Rule. Therefore, as a result of this final rule, consumers holding unverified prepaid
accounts (or those desiring to hold unverified accounts) may experience increased product access
or functionality relative to the baseline.
In addition to these impacts on consumers holding or desiring to hold unverified prepaid
accounts, consumers holding verified prepaid accounts may also benefit relative to the baseline
established by the Prepaid Accounts Rule’s requirement that financial institutions offer error
resolution and limited liability protections for unverified accounts. Under the Prepaid Accounts
Rule, financial institutions may have raised prices to account for forecasted or actual fraud
resulting from providing error resolution and limited liability protections on unverified accounts.
This final rule allows financial institutions to avoid such costs. Financial institutions may pass
through some portion of the cost savings to holders of verified accounts by lowering prices, or
they may invest cost savings into innovation efforts to create higher quality products.
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In terms of alternatives, the Bureau considered applying error resolution and limited
liability protections to pre-verification transactions for those accounts later verified. The Bureau
also considered applying these protections to only those pre-verification transactions occurring
within a specified time (such as 30 days) prior to account verification. Although those
approaches would have decreased the risk that holders of unverified accounts would experience a
loss of funds in the event of an unauthorized transaction or other error, covered persons would
have incurred the burdens associated with providing these protections (including any attendant
fraud losses) for pre-verification transactions. Commenters stated that financial institutions rely
on verified consumer information to identify fraudulent transactions when they are attempted.
Therefore, even if the accountholder’s identity is verified later, the financial institution is unable
to leverage verified consumer information to limit fraud exposure on pre-verification
transactions, thereby driving up costs. The Bureau’s approach provides more incentive for
consumers to verify accounts upon acquisition and, by so doing, may increase investigation
speed (and decrease the costs associated with conducting those investigations), relative to these
alternatives. The Bureau’s approach should decrease uncertainty regarding responsibilities and
liabilities among industry participants.
“Business partner” redefined to exclude certain arrangements. The Bureau is amending
the definition of “business partner” in § 1026.6(a)(5)(iii) and related commentary to exclude
business arrangements between prepaid account issuers and issuers of traditional credit cards
from coverage under the Prepaid Accounts Rule’s tailored provisions applicable to hybrid
prepaid-credit cards, provided certain conditions are satisfied. The 2016 Final Rule had defined
the term “business partner” to mean a person (other than the prepaid account issuer or its
affiliate) that can extend credit through a separate credit feature where the person or its affiliate
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has an arrangement with a prepaid account issuer or its affiliate. As revised by this final rule,
§ 1026.61(a)(5)(iii)(D) now provides that a person that can extend credit through a credit card
account is not a business partner of a prepaid account issuer with which it has an arrangement, as
defined in § 1026.61(a)(5)(iii)(A) through (C), with regard to such a credit card account so long
as certain conditions are met. For example, under these conditions, the credit card account
remains subject to Regulation Z’s credit card requirements in its own right, and both the credit
card and prepaid accounts’ pricing terms must be independent of whether the two accounts are
linked. Thus, if certain conditions are met, this final rule provides that prepaid account issuers
may enter into certain business arrangements with credit card issuers without being subject to the
Prepaid Accounts Rule’s tailored provisions applicable to hybrid prepaid-credit cards.
Although the Bureau believes that few industry participants will be impacted directly by
the Prepaid Accounts Rule’s credit-related provisions, this change will relieve burden for those
industry participants that currently qualify for the exception and will decrease the cost incurred
by industry participants entering into qualifying relationships in the future. For example, under
the Prepaid Accounts Rule’s prior definition of “business partner,” a provider of a digital wallet
that could store funds that had a cross-marketing arrangement with a credit card issuer could
have been subject to those provisions of the Prepaid Accounts Rule applicable to covered
separate credit features accessible by a hybrid prepaid-credit card if the prepaid card from time to
time could access credit from the credit card account in the course of a transaction to obtain
goods or services, obtain cash, or conduct P2P transfers. Among other things, the digital wallet
provider would have been required to wait 30 days after the digital wallet account was registered
before allowing a consumer to add a credit card account issued by a “business partner,” though
there would be no such required waiting period for credit card accounts offered by unaffiliated
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card issuers with whom there is no such relationship. Under the 2016 Final Rule, this
requirement applied even if the credit card account was subject to the provisions of Regulation Z
that apply to credit card accounts in its own right.
Because the Bureau narrowly tailored this amendment, consumers likely will not incur
many costs as a result. For example, § 1026.61(a)(5)(iii)(D)(1) provides that for the credit card
account to be eligible for the exclusion, it must be a credit card account under an open-end (not
home-secured) consumer credit plan that a consumer can access through a traditional credit card
and thus subject to the applicable credit card provisions of Regulation Z in its own right.
Therefore, consumers will still enjoy the credit card protections provided by Regulation Z with
respect to the linked credit card account. In addition, the Bureau believes that when the
conditions of the “business partner” exclusion in § 1026.61(a)(5)(iii)(D) are met, consumers will
be further protected because of the provisions intended to help make the choice to acquire or
retain a prepaid account independent of the choice of whether to link a credit feature to it. For
example, § 1026.61(a)(5)(iii)(D)(3) generally prohibits both the prepaid account issuer and the
credit card issuer from conditioning the acquisition or retention of either the prepaid or credit
card account on whether the consumer authorizes their linkage. Also, under
§ 1026.61(a)(5)(iii)(D)(4) and (5), both the prepaid account issuer and card issuer generally are
prohibited from varying the prepaid and credit card account terms and conditions based on
whether the consumer chooses to link the accounts.148 These provisions will help to ensure that
148 More specifically, § 1026.61(a)(5)(iii)(D)(4) ensures that the prepaid account issuer applies the same terms, conditions, or features to the prepaid account regardless of whether a consumer authorizes linking the prepaid card to the credit card account offered by the card issuer subject to the exception. In addition, the prepaid account issuer is required to apply the same fees to load funds from a linked credit card account to the prepaid account as it charges for a comparable load from a credit feature offered by a person who is not the prepaid account issuer, its affiliate, or person with whom the prepaid account issuer has an arrangement. With respect to the credit card account, § 1026.61(a)(5)(iii)(D)(5) requires the card issuer to apply the same specified terms and conditions to the credit card
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the consumer’s choice to acquire or retain a prepaid account or a credit card account is distinct
from his or her choice to link a credit card account and a prepaid account. By preventing pricing
structures from depending on the individual consumer’s choice to link the accounts, this final
rule’s provisions help provide the consumer with an opportunity to independently identify and
appreciate the costs associated with each product. In addition, § 1026.61(a)(5)(iii)(D)(2)
generally requires that the consumer provide either the prepaid account issuer or the card issuer a
written request that is separately signed or initialized authorizing the prepaid card to access the
credit card account, thereby helping to ensure that any account linkages are transparent and
represent the consumer’s deliberate choice.
In addition, this change helps to decrease the likelihood of consumer confusion. Absent
this final rule’s amendment to the definition of “business partner,” there would be more instances
in which the Prepaid Accounts Rule’s provisions would apply to some, but not all, of the credit
card accounts provisioned to a consumer’s digital wallet. This uneven application could have
resulted in increased consumer confusion relative to the approach taken in this final rule because
credit card payment credentials stored within the same digital wallet would have been subject to
different disclosure regimes and use restrictions with greater frequency than will be experienced
under this final rule’s approach. By helping to foster uniformity in application and therefore
increasing transparency, this final rule’s amendment to the definition of “business partner” will
benefit these consumers.
As discussed above, the Bureau also considered changing the basis for qualifying for the
exception in § 1026.61(a)(5)(iii)(D), including extending the exception to apply to credit card account regardless of whether the consumer authorizes its linkage to the prepaid account and additionally requires that the issuer apply the same specified terms and conditions to extensions of credit accessed by the prepaid card from the credit card account as it applies to extensions of credit accessed by the traditional credit card.
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accounts offered by the prepaid account issuer or its affiliate as well as allowing providers to
vary certain terms and conditions based on whether the prepaid account and the credit card
account are linked. The Bureau did not adopt these changes in this final rule. The Bureau
believes that the approach taken in this final rule more adequately ensures the separation and
independence of linked prepaid and credit card accounts and thereby leads to better-informed
consumer choice. The Bureau believes that conditioning the exception on the requirement that
providers not vary terms and conditions based on whether the prepaid account and the credit card
account are linked will help to ensure that consumers’ decisions about account acquisition,
retention, and link authorization are simpler and less prone to undue pressure (and thereby do not
require the protections provided by the tailored provisions in Regulations Z and E applicable
only to covered separate credit features and linked prepaid accounts). Nonetheless, the Bureau
does not believe that these safeguards would be sufficient to protect consumers when the prepaid
account and the credit card account are offered by entities under common control. The Bureau
believes that ensuring separation and independence is more complicated when both accounts are
issued by entities under common control, particularly given that offset, security interest, and
other types of linkages may be present.
The Bureau also considered requiring that card issuers comply with § 1026.12(d)(3)(ii),
which permits a written plan authorizing periodic deductions from the prepaid account only if the
deductions are no more frequent than once per calendar month, to qualify for the exception, as
suggested by consumer advocate commenters. The Bureau is not adopting such a requirement in
this final rule. The Bureau believes that adding such a repayment provision, which would
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impose an additional burden on industry, is not necessary given the consumer protections already
offered by limits on repayment terms.149
Treatment of negative balances. The Bureau is expanding the exception in
§ 1026.61(a)(4) that allows prepaid account issuers to provide certain incidental forms of credit
structured as a negative balance on the asset feature of prepaid accounts, to include those
situations where a covered separate credit feature offered by a business partner is attached to the
prepaid account, provided the other requirements in § 1026.61(a)(4) are met. In these situations,
the incidental credit structured as a negative balance on the prepaid account will not be subject to
Regulation Z, although the business partner’s separate credit feature will be subject to
Regulation Z.
Broadening the exception in § 1026.61(a)(4) to include those situations where a covered
separate credit feature offered by a business partner is attached to the prepaid account, provided
the other requirements in § 1026.61(a)(4) are met, enables industry participants to avoid several
operational costs that they might incur in preventing negative balances on the prepaid account
when a covered separate credit feature offered by a business partner is attached. These costs
would have included building Regulation Z-compliant systems to hold otherwise permissible
negative balances in separate subaccounts when covered separate credit features issued by a
business partner are linked or charging the incidental credit to the linked covered separate credit
features. One commenter indicated that when a covered separate credit feature is offered by a
149 Final § 1026.61(a)(5)(iii)(D)(5) prevents the card issuer from varying the repayment terms of the credit card account based on whether the consumer has authorized linking the prepaid card to the credit card account or based on whether a particular credit extension from the credit card account is accessed by the prepaid card or by the traditional credit card.
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business partner, it may not always be possible to charge the incidental credit to the linked
covered separate credit feature if doing so could cause the account to exceed its credit limit.
Although the negative balance may be repaid from the next incoming deposit because the
offset provisions in § 1026.12(d) will not apply in these cases, consumers may benefit from this
provision relative to the baseline even though they may have less control of their funds. For
example, one commenter indicated that incidental credit that is charged to the linked covered
separate credit feature would likely be deemed a cash advance by the card issuer, subjecting the
customer to interest and fees. This final rule’s approach helps to avoid that outcome. Further,
without the exception in § 1026.61(a)(4), it is possible that a prepaid account issuer would build
Regulation Z-compliant systems to hold otherwise permissible negative balances in separate
subaccounts when business partner credit cards are linked. Consumers could be confused by the
presence of subaccounts, especially to the extent that the trigger for their creation (whether a
linked credit card is issued by the prepaid account issuer’s business partner) may not be
transparent to the consumer.
The Bureau considered multiple alternative approaches to address the treatment of
incidental credit structured as a negative balance. This final rule’s approach is more permissive
than that articulated in the June 2017 Proposal, which would not have permitted those situations
where a covered separate credit feature offered by a business partner is attached to the prepaid
account to qualify for the negative balance exception in § 1026.61(a)(4). As observed by
commenters, the Bureau’s approach in this final rule relieves operational burden for prepaid
account issuers and avoids potential consumer confusion.
The Bureau also considered broadening the exception for incidental credit structured as a
negative balance to include situations in which a covered separate credit feature offered by the
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prepaid issuer or its affiliate is attached to the prepaid account. However, the Bureau believes
that the operational concerns that arise when a business partner offers a covered separate credit
feature do not arise when the issuer or its affiliate offers the feature. In particular, the prepaid
account issuer or its affiliate, in these cases, would already offer Regulation Z-compliant covered
separate credit feature. The Bureau believes when the same or affiliated parties offer both the
prepaid account and the covered separate credit feature, they will encounter fewer difficulties in
charging the incidental credit to the covered separate credit feature or waiving interest and fees
on the incidental credit when it is charged to the covered separate credit feature.
Extending the effective date to April 1, 2019. The Bureau is extending the overall
effective date of the Prepaid Accounts Rule to April 1, 2019. The Bureau previously considered
the benefits, costs, and impacts to consumers and covered persons of a six month effective date
delay in the 2017 Effective Date Final Rule.150 The Bureau acknowledges that the amendments
regarding error resolution and limited liability protections on unverified accounts may require
some financial institutions to change to language on or in retail packaging. The Bureau
appreciates that in some circumstances these changes may be difficult to accomplish by April 1,
2018, and thus believes that a further extension of the effective date is appropriate. The Bureau
believes that the other revisions to the Prepaid Accounts Rule adopted in this final rule do not
generally impose new obligations on covered persons. Rather, these amendments generally
relieve burdens, provide industry with additional flexibility in complying with the Prepaid
Accounts Rule, or clarify provisions that were identified as being potentially ambiguous.
Covered persons will benefit from receiving additional flexibility with respect to when they must
150 82 FR 18975, 18979 (Apr. 25, 2017).
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be compliant with the provisions of the Prepaid Accounts Rule. However, consumers’
realization of the benefits arising from the Prepaid Accounts Rule will be delayed by an
additional year. Both consumers and covered persons may benefit from decreased disruption
arising from the implementation of the Prepaid Accounts Rule that could result from this further
delay.
Potential specific impacts of this final rule. The requirements of this final rule apply
uniformly across covered financial institutions without regard to their asset size. The Bureau
does not expect this final rule to have a differential impact on depository institutions and credit
unions with $10 billion or less in total assets, as described in section 1026 of the Dodd-Frank
Act. The Bureau solicited comment regarding the impact of the June 2017 Proposal’s provisions
on those depository institutions and credit unions with $10 billion or less in total assets and how
those impacts may be distinct from those experienced by larger institutions. The Bureau did not
receive any comments directly addressing this issue in response to that request.
The Bureau has no reason to believe that the additional flexibility offered to covered
persons by this final rule will differentially affect consumers in rural areas. The Bureau
requested comment regarding the impact of the June 2017 Proposal’s provisions on consumers in
rural areas and how those impacts may differ from those experienced by consumers generally.
The Bureau did not receive any comments directly addressing this issue in response to that
request.
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VIII. Regulatory Flexibility Act
The Regulatory Flexibility Act,151 as amended by the Small Business Regulatory
Enforcement Fairness Act of 1996,152 (RFA) requires each agency to consider the potential
impact of its regulations on small entities, including small businesses, small governmental units,
and small not-for-profit organizations.153 The RFA defines a “small business” as a business that
meets the size standard developed by the Small Business Administration (SBA) pursuant to the
Small Business Act.154
The RFA generally requires an agency to conduct an initial regulatory flexibility analysis
(IRFA) and a final regulatory flexibility analysis (FRFA) of any rule subject to notice-and-
comment rulemaking requirements, unless the head of the agency certifies that the rule will not
have a significant economic impact on a substantial number of small entities.155 The Bureau also
is subject to certain additional procedures under the RFA involving the convening of a panel to
consult with small entity representatives prior to proposing a rule for which an IRFA is
required.156
The Bureau’s director certified that the June 2017 Proposal would not have a significant
economic impact on a substantial number of small entities and that an IRFA was therefore not
151 Public Law 96-354, 94 Stat. 1164 (1980). 152 Public Law 104-21, section 241, 110 Stat. 847, 864-65 (1996). 153 5 U.S.C. 601 through 612. The term “‘small organization’ means any not-for-profit enterprise which is independently owned and operated and is not dominant in its field, unless an agency establishes [an alternative definition under notice and comment].” 5 U.S.C. 601(4). The term “‘small governmental jurisdiction’ means governments of cities, counties, towns, townships, villages, school districts, or special districts, with a population of less than fifty thousand, unless an agency establishes [an alternative definition after notice and comment].” 5 U.S.C. 601(5). 154 5 U.S.C. 601(3). The Bureau may establish an alternative definition after consulting with the SBA and providing an opportunity for public comment. Id. 155 5 U.S.C. 601 et seq. 156 5 U.S.C. 609.
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required.157 Upon considering relevant comments as well as differences between this final rule
and the June 2017 Proposal, the Bureau concludes that this rule will not have a significant
economic impact on a substantial number of small entities. Therefore, a FRFA is not required.158
As discussed above, this final rule amends certain provisions of the Prepaid Accounts
Rule. Specifically, the Bureau is amending the Prepaid Accounts Rule so that it no longer
requires financial institutions to resolve errors or limit consumers’ liability on unverified prepaid
accounts (other than payroll card accounts or government benefit accounts). In addition, the
Bureau is creating a limited exception to the credit-related provisions of the Prepaid Accounts
Rule by narrowing the Prepaid Accounts Rule’s definition of “business partner” in Regulation Z
so that it no longer includes certain arrangements between prepaid account issuers and credit
card issuers that offer traditional credit card products.159 Further, this final rule amends the
Prepaid Accounts Rule so that it no longer considers incidental credit extended through a
negative balance on a prepaid account to be subject to Regulation Z when a covered separate
credit feature offered by a business partner is attached to the prepaid account, provided other
requirements are satisfied. The Bureau also is extending the overall effective date of the Prepaid
157 82 FR 29630, 29661 (June 29, 2017). The June 2017 Proposal was the second rule proposed by the Bureau to amend the 2016 Final Rule, which created comprehensive consumer protections for prepaid accounts under Regulations E and Z. In the 2014 Proposal, the Bureau concluded that the rule would not have a significant economic impact on a substantial number of small entities and that an IRFA was therefore not required. 79 FR 77102, 77283 (Dec. 23, 2014). That conclusion remained unchanged for the 2016 Final Rule. 81 FR 83934, 84308 (Nov. 22, 2016). In addition, the Bureau determined that both the 2017 Effective Date Proposal and the 2017 Effective Date Final Rule, which extended the general effective date of the 2016 Final Rule by six months, likewise would not have a significant economic impact on a substantial number of small entities. 82 FR 13782, 13785 (Mar. 15, 2017); 82 FR 18975, 18979 (Apr. 25, 2017). 158 5 U.S.C. 605(b). 159 Although a credit card account is subject to the credit card provisions of Regulation Z in its own right if the account and the arrangement between the prepaid account issuer and credit card account issuer meet all conditions for this exception, it will not be subject to the provisions in Regulation Z that apply only to covered separate credit features accessible by a hybrid prepaid-credit card. In addition, the prepaid account with which it is linked will not be subject to the provisions in Regulation E that apply only to prepaid accounts connected to covered separate credit features.
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Accounts Rule to April 1, 2019, and is making clarifications or minor adjustments to certain
other discrete aspects of the Prepaid Accounts Rule.
This final rule’s amendments generally benefit small entities by providing additional
flexibility with respect to their implementation of the Prepaid Accounts Rule and will not
increase burden on small entities. In particular, the credit-related amendments address certain
complications that arise when a covered separate credit feature is attached to a digital wallet, and
the Bureau believes that, at present, few small entities will be affected by the relevant provisions
of the Prepaid Accounts Rule or these amendments.
Error resolution and limited liability for unverified accounts. The Bureau is revising
§§ 1005.11(c)(2)(i), 1005.18(d)(1)(ii) and (e)(3), comments 18(e)-4 through 6, and Appendix A-
7(c) to provide that Regulation E’s error resolution and limited liability requirements do not
extend to prepaid accounts that have not successfully completed the financial institution’s
consumer identification and verification process (i.e., accounts that have not concluded the
process, accounts where the process is concluded but the consumer’s identity could not be
verified, and accounts in programs for which there is no such process). The Bureau is adopting
related changes to model language in Appendix A-7(c) and is requiring that those financial
institutions offering prepaid account programs that do not have a consumer identification and
verification process disclose to consumers any error resolution and limited liability protections
offered (or, if applicable, that no such protections are offered).
Those small entities offering unverified prepaid accounts will benefit from avoiding the
burdens associated with providing Regulation E’s error resolution and limited liability
protections for prepaid accounts held by consumers who have not successfully completed the
consumer identification and verification process. In addition, any increase in fraud risk arising
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from the Prepaid Accounts Rule’s requirement that financial institutions offer error resolution
and limited liability protections to consumers holding unregistered accounts may be avoided.
However, these benefits will be limited if small entities tend not to distribute prepaid accounts
that can be used before verification or that offer significant pre-verification functionality.
“Business partner” redefined to exclude certain arrangements. The Bureau is amending
the definition of “business partner” in § 1026.61(a)(5)(iii) and related commentary to exclude
business arrangements between prepaid account issuers and issuers of traditional credit cards
from coverage under the Prepaid Accounts Rule’s tailored provisions applicable to hybrid
prepaid-credit cards if certain conditions are satisfied. This amendment will facilitate
compliance with the Prepaid Accounts Rule by digital wallet providers offering products that
both offer the ability to store funds (such that the digital wallet is a prepaid account) and permit
consumers to use the digital wallet account number from time to time to access stored credentials
for credit card accounts in the course of a transaction. If the conditions described above are met,
such products will be excepted from the tailored provisions in the Prepaid Accounts Rule
applicable only to covered separate credit features and prepaid accounts with those features.
Small entities offering products that qualify for the exception will be relieved of the burdens
associated with complying with these tailored provisions as a result of this final rule.
Treatment of negative balances. The Bureau is amending § 1026.61(a)(4) to allow a
prepaid account issuer to provide incidental forms of credit structured as a negative balance on
the prepaid account when a covered separate credit feature offered by business partner is
attached to the prepaid account.160 In this case, the incidental credit structured as a negative
160 As discussed above, the other prerequisites contained in § 1026.61(a)(4) must also be satisfied.
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balance on the prepaid account will not be subject to Regulation Z. As described above, this
amendment will relieve small entities offering certain digital wallet products (those which store
funds and to which a covered separate credit feature offered by a business partner may be
attached) from the potential implementation burdens associated either with (1) constructing
Regulation Z-compliant subaccounts to hold otherwise permissible negative balances; or (2)
charging the incidental credit to the business partner’s linked covered separate credit feature.
Extending the overall effective date to April 1, 2019. The Bureau is extending the overall
effective date of the Prepaid Accounts Rule to April 1, 2019. This extension will relieve burden
on small entities by providing additional time to comply with the provisions of the Prepaid
Accounts Rule.
Other modifications. In addition to these provisions, the Bureau is making clarifications
or minor adjustments to certain other discrete aspects of the Prepaid Accounts Rule. Similar to
those provisions discussed, these clarifications or minor adjustments will provide additional
options for compliance and will not increase burden on small entities.
In summary, this final rule will not increase costs incurred by small entities relative to the
baseline established by the Prepaid Accounts Rule because this rulemaking’s amendments
provide additional flexibility to financial institutions with respect to how they may comply with
the Prepaid Accounts Rule. Small entities retain the option of complying with the Prepaid
Accounts Rule as it existed prior to these modifications. Therefore, small entities will not
experience a significant economic impact as a result of this final rule.
Certification
Accordingly, the undersigned hereby certifies that this final rule will not have a
significant economic impact on a substantial number of small entities.
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IX. Paperwork Reduction Act
Under the Paperwork Reduction Act of 1995 (PRA),161 Federal agencies are generally
required to seek Office of Management and Budget (OMB) approval for information collection
requirements prior to implementation. The collections of information related to the Prepaid
Accounts Rule have been reviewed and approved by OMB previously in accordance with the
PRA and assigned OMB Control Numbers 3170-0014 (Regulation E) and 3170-0015
(Regulation Z). Under the PRA, the Bureau may not conduct or sponsor and, notwithstanding
any other provision of law, a person is not required to respond to an information collection
unless the information collection displays a valid control number assigned by OMB.
The Bureau did not receive any comments regarding its PRA discussion in the June 2017
Proposal. The Bureau has determined that this final rule amends the Prepaid Accounts Rule to
provide firms with additional flexibility and clarity with respect to required disclosures;
therefore, it will have only minimal impact on the industry-wide aggregate PRA burden relative
to the baseline.
X. Congressional Review Act
Pursuant to the Congressional Review Act,162 the Bureau will submit a report containing
this rule and other required information to the U.S. Senate, the U.S. House of Representatives,
and the Comptroller General of the United States prior to the rule’s published effective date. The
Office of Information and Regulatory Affairs has designated this rule as not a “major rule” as
defined by 5 U.S.C. 804(2).
161 44 U.S.C. 3501 et seq. 162 5 U.S.C. 801 et seq.
issuer from imposing declined transaction fees in connection with the credit feature, regardless of
whether the declined transaction fee is imposed on the credit feature or on the asset feature of the
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prepaid account. For example, if the prepaid card attempts to access credit from the covered
separate credit feature accessible by the hybrid prepaid-credit card and the transaction is
declined, § 1026.52(b)(2)(i)(B)(1) prohibits the card issuer from imposing a declined transaction
fee, regardless of whether the fee is imposed on the credit feature or on the asset feature of the
prepaid account. Fees imposed for declining a transaction that would have only accessed the
asset feature of the prepaid account and would not have accessed the covered separate credit
feature accessible by the hybrid prepaid-credit are not covered by § 1026.52(b)(2)(i)(B)(1).
* * * * *
Section 1026.61—Hybrid Prepaid-Credit Cards
61(a) Hybrid Prepaid-Credit Card
* * * * *
61(a)(3) Prepaid Card Can Access Credit Extended Through a Negative Balance on the
Asset Feature
61(a)(3)(i) In General
1. Credit accessed on an asset feature of a prepaid account. i. See comment 2(a)(14)-3
for examples of when transactions authorized or paid on the asset feature of a prepaid account
meet the definition of credit under § 1026.2(a)(14).
ii. Except as provided in § 1026.61(a)(4), a prepaid card would trigger coverage as a
hybrid prepaid-credit card if it is a single device that can be used from time to time to access
credit that can be extended through a negative balance on the asset feature of the prepaid
account. (However, unless the credit extended through a negative balance on the asset feature of
the prepaid account meets the requirements of § 1026.61(a)(4), such a product structure would
violate the rules under § 1026.61(b).) A credit extension through a negative balance on the asset
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feature of a prepaid account can occur during the authorization phase of the transaction as
discussed in comment 61(a)(3)(i)-1.iii or in later periods up to the settlement of the transaction,
as discussed in comment 61(a)(3)(i)-1.iv.
iii. The following example illustrates transactions where a credit extension occurs during
the course of authorizing a transaction.
A. A transaction initiated using a prepaid card when there are insufficient or unavailable
funds in the asset feature of the prepaid account at the time the transaction is initiated and credit
is extended through a negative balance on the asset feature of the prepaid account when the
transaction is authorized.
iv. The following examples illustrate transactions where a credit extension occurs at
settlement.
A. Transactions that occur when there are sufficient or available funds in the asset feature
of the prepaid account at the time of authorization to cover the amount of the transaction but
where the consumer does not have sufficient or available funds in the asset feature to cover the
transaction at the time of settlement. Credit is extended through a negative balance on the asset
feature at settlement to pay those transactions.
B. Transactions that settle even though they were not authorized in advance where credit
is extended through a negative balance on the asset feature at settlement to pay those
transactions.
61(a)(3)(ii) Negative Asset Balances
1. Credit extended on the asset feature of the prepaid account. Section 1026.61(a)(3)(i)
determines whether a prepaid card triggers coverage as a hybrid prepaid-credit card under
§ 1026.61(a), and thus, whether a prepaid account issuer is a card issuer under § 1026.2(a)(7)
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subject to this regulation, including § 1026.61(b). However, § 1026.61(b) requires that any
credit feature accessible by a hybrid prepaid-credit card must be structured as a separate credit
feature using either a credit subaccount of the prepaid account or a separate credit account.
Unless § 1026.61(a)(4) applies, a card issuer would violate § 1026.61(b) if it structures a credit
feature as a negative balance on the asset feature of the prepaid account. A prepaid account
issuer can use a negative asset balance structure to extend credit on a prepaid account if the
prepaid card is not a hybrid prepaid-credit card with respect to that credit as described in
§ 1026.61(a)(4).
61(a)(4) Exception for Credit Extended Through a Negative Balance
1. Prepaid card that is not a hybrid prepaid-credit card. i. A prepaid card that is not a
hybrid prepaid-credit card as described in § 1026.61(a)(4) with respect to credit extended
through a negative balance on the asset feature of the prepaid account is not a credit card under
this regulation with respect to that credit. A prepaid card is not a hybrid prepaid-credit card with
respect to credit extended through a negative balance on the asset feature of the prepaid account
if:
A. The card cannot access credit from a covered separate credit feature under
§ 1026.61(a)(2)(i) that is offered by the prepaid account issuer or its affiliate, though it is
permissible for it to access credit from a covered separate credit feature offered by a business
partner or from a non-covered separate credit feature as described under § 1026.61(a)(2)(ii); and
B. The card can only access credit extended through a negative balance on the asset
feature of the prepaid account in accordance with both the conditions set forth in
§ 1026.61(a)(4)(ii)(A) and (B).
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ii. If the conditions of § 1026.61(a)(4) are met and the prepaid card can access credit from
a covered separate credit feature as defined in § 1026.61(a)(2)(i) that is offered by a business
partner, the prepaid card is a hybrid prepaid-credit card with respect to the covered separate
credit feature pursuant to § 1026.61(a)(2)(i) but is not a hybrid prepaid-credit card with respect to
credit extended by a prepaid account issuer through a negative balance on the asset feature of the
prepaid account that meets the conditions of § 1026.61(a)(4) or with respect to any non-covered
separate credit feature pursuant to § 1026.61(a)(2)(ii). If the conditions of § 1026.61(a)(4) are
met and the prepaid card cannot access credit from any covered separate credit feature as defined
in § 1026.61(a)(2)(i), the prepaid card is not a hybrid prepaid-credit card with respect to credit
extended by a prepaid account issuer through a negative balance on the asset feature of the
prepaid account that meets the conditions of § 1026.61(a)(4) or with respect to any non-covered
separate credit feature pursuant to § 1026.61(a)(2)(ii).
iii. Below is an example of when a prepaid card is not a hybrid prepaid-credit card with
respect to credit extended through a negative balance on the asset feature of the prepaid account
because the conditions set forth in § 1026.61(a)(4) have been met.
A. The prepaid card can only access credit extended through a negative balance on the
asset feature of the prepaid account in accordance with both the conditions set forth in
§ 1026.61(a)(4)(ii)(A) and (B). The card can access credit from a non-covered separate credit
feature as defined in § 1026.61(a)(2)(ii) and from a covered separate credit feature as defined in
§ 1026.61(a)(2)(i) offered by a business partner, but cannot access credit for a covered separate
credit feature that is offered by a prepaid account issuer or its affiliate.
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iv. Below is an example of when a prepaid card is a hybrid prepaid-credit card with
respect to credit extended through a negative balance on the asset feature of the prepaid account
because the conditions set forth in § 1026.61(a)(4) have not been met.
A. When there are insufficient or unavailable funds in the asset feature of the prepaid
account at the time a transaction is initiated, the card can be used to draw, transfer, or authorize
the draw or transfer of credit from a covered separate credit feature offered by the prepaid
account issuer or its affiliate during the authorization phase to complete the transaction so that
credit is not extended on the asset feature of the prepaid account. The exception in
§ 1026.61(a)(4) does not apply because the prepaid card can be used to draw, transfer, or
authorize the draw or transfer of credit from a covered separate credit feature defined in
§ 1026.61(a)(2)(i) that is offered by the prepaid account issuer or its affiliate. The card is a
hybrid prepaid-credit card with respect to credit extended through a negative balance on the asset
feature of the prepaid account pursuant to § 1026.61(a)(3) and with respect to the covered
separate credit feature pursuant to § 1026.61(a)(2)(i). In that case, a card issuer has violated
§ 1026.61(b) because it has structured the credit feature as a negative balance on the asset feature
of the prepaid account. See § 1026.61(a)(3)(ii) and (b).
v. In the case where a prepaid card is not a hybrid prepaid-credit card with respect to
credit extended through a negative balance on the asset feature of the prepaid account because
the conditions set forth in § 1026.61(a)(4) are met:
A. The prepaid account issuer is not a card issuer under § 1026.2(a)(7) with respect to the
prepaid card when it accesses credit extended through the negative balance on the asset feature
of the prepaid account. The prepaid account issuer also is not a creditor under
§ 1026.2(a)(17)(iii) or (iv) because it is not a card issuer under § 1026.2(a)(7) with respect to the
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prepaid card when it accesses credit extended through the negative balance on the asset feature
of the prepaid account. The prepaid account issuer also is not a creditor under § 1026.2(a)(17)(i)
with respect to credit extended through the negative balance on the asset feature of the prepaid
account as a result of imposing fees on the prepaid account because those fees are not finance
charges with respect to that credit. See comment 4(b)(11)-1.iii.
Paragraph 61(a)(4)(ii)
Paragraph 61(a)(4)(ii)(A)
1. Authorization not required for every transaction. The prepaid account issuer is not
required to receive an authorization request for each transaction to comply with
§ 1026.61(a)(4)(ii)(A). Nonetheless, the prepaid account issuer generally must establish an
authorization policy as described in § 1026.61(a)(4)(ii)(A) and have reasonable practices in place
to comply with its established policy with respect to the authorization requests it receives. In
that case, a prepaid account issuer is deemed to satisfy § 1026.61(a)(4)(ii)(A) even if a negative
balance results on the prepaid account when a transaction is settled.
2. Provisional credit. A prepaid account issuer may still satisfy the requirements set forth
in § 1026.61(a)(4)(ii)(A) even if a negative balance results on the asset feature of the prepaid
account because the prepaid account issuer debits the amount of any provisional credit that was
previously granted on the prepaid account as specified in Regulation E, 12 CFR 1005.11, so long
as the prepaid account issuer otherwise complies with the conditions set forth in § 1026.61(a)(4).
For example, under § 1026.61(a)(4), a prepaid account issuer may not impose a fee or charge
enumerated under § 1026.61(a)(4)(ii)(B) with respect to this negative balance.
3. Delayed load cushion. i. Incoming fund transfers. For purposes of
§ 1026.61(a)(4)(ii)(A)(2), cases where the prepaid account issuer has received an instruction or
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confirmation for an incoming electronic fund transfer originated from a separate asset account to
load funds to the prepaid account include a direct deposit of salary from an employer and a direct
deposit of government benefits.
ii. Consumer requests. For purposes of § 1026.61(a)(4)(ii)(A)(2), cases where the
prepaid account issuer has received a request from the consumer to load funds to the prepaid
account from a separate asset account include where the consumer, in the course of a transaction,
requests a load from a deposit account or uses a debit card to cover the amount of the transaction
if there are insufficient funds in the asset feature of the prepaid account to pay for the transaction.
4. Permitted authorization circumstances are not mutually exclusive. The two
circumstances set forth in § 1026.61(a)(4)(ii)(A)(1) and (2) are not mutually exclusive. For
example, assume a prepaid account issuer has adopted the $10 cushion described in
§ 1026.61(a)(4)(ii)(A)(1), and the delayed load cushion described in § 1026.61(a)(4)(ii)(A)(2).
Also, assume the prepaid account issuer has received an instruction or confirmation for an
incoming electronic fund transfer originated from a separate asset account to load funds to the
prepaid account but the prepaid account issuer has not received the funds from the separate asset
account. In this case, a prepaid account issuer satisfies § 1026.61(a)(4)(ii)(A) if the amount of a
transaction at authorization will not cause the prepaid account balance to become negative at the
time of the authorization by more than the requested load amount plus the $10 cushion.
Paragraph 61(a)(4)(ii)(B)
1. Different terms on different prepaid account programs. Section 1026.61(a)(4)(ii)(B)
does not prohibit a prepaid account issuer from charging different terms on different prepaid
account programs. For example, the terms may differ between a prepaid account program where
a covered separate credit feature accessible by a hybrid prepaid-credit card is not offered in
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connection with any prepaid accounts within the prepaid account program, and a prepaid account
program where a covered separate credit feature accessible by a hybrid prepaid-credit card may
be offered to some consumers in connection with their prepaid accounts.
Paragraph 61(a)(4)(ii)(B)(1)
1. Fees or charges covered by § 1026.61(a)(4)(ii)(B)(1). To qualify for the exception in
§ 1026.61(a)(4)(ii)(B), the prepaid account issuer may not impose any fees or charges for
opening, issuing, or holding a negative balance on the asset feature, or for the availability of
credit, whether imposed on a one-time or periodic basis. Section 1026.61(a)(4)(ii)(B)(1) does
not include fees or charges to open, issue, or hold the prepaid account where the amount of the
fee or charge imposed on the asset feature is not higher based on whether credit might be offered
or has been accepted, whether or how much credit the consumer has accessed, or the amount of
credit available.
i. The types of fees or charges prohibited by § 1026.61(a)(4)(ii)(B)(1) include:
A. A daily, weekly, monthly, or other periodic fee assessed each period a prepaid account
has a negative balance or is in “overdraft” status; and
B. A daily, weekly, monthly or other periodic fee to hold the prepaid account where the
amount of the fee that applies each period is higher if the consumer is enrolled in a purchase
cushion as described in § 1026.61(a)(4)(ii)(A)(1) or a delayed load cushion as described in
§ 1026.61(a)(4)(ii)(A)(2) during that period. For example, assume that a consumer will pay a fee
to hold the prepaid account of $10 if the consumer is not enrolled in a purchase cushion as
described in § 1026.61(a)(4)(ii)(A)(1) or a delayed load cushion as described in
§ 1026.61(a)(4)(ii)(A)(2) during that month, and will pay a fee to hold the prepaid account of
$15 if the consumer is enrolled in a purchase cushion or delayed load cushion that period. The
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$15 charge is a charge described in § 1026.61(a)(4)(ii)(B)(1) because the amount of the fee to
hold the prepaid account is higher based on whether the consumer is participating in the payment
cushion or delayed load cushion during that period.
ii. Fees or charges described in § 1026.61(a)(4)(ii)(B) do not include:
A. A daily, weekly, monthly, or other periodic fee to hold the prepaid account where the
amount of the fee is not higher based on whether the consumer is enrolled in a purchase cushion
as described in § 1026.61(a)(4)(ii)(A)(1) or a delayed load cushion as described in
§ 1026.61(a)(4)(ii)(A)(2) during that period, whether or how much credit has been extended
during that period, or the amount of credit that is available during that period.
Paragraph 61(a)(4)(ii)(B)(2)
1. Fees or charges covered by § 1026.61(a)(4)(ii)(B)(2). To qualify for the exception in
§ 1026.61(a)(4)(ii)(B), the prepaid account issuer may not impose any fees or charges on the
asset feature of the prepaid account that will be imposed only when credit is extended on the
asset feature or when there is a negative balance on the asset feature.
i. These types of fees or charges include:
A. A fee imposed because the balance on the prepaid account becomes negative;
B. Interest charges attributable to a periodic rate that applies to the negative balance;
C. Any fees for delinquency, default, or a similar occurrences that result from the prepaid
account having a negative balance or being in “overdraft” status, except that the actual costs to
collect the credit may be imposed if otherwise permitted by law; and
D. Late payment fees.
ii. Fees or charges described in § 1026.61(a)(4)(ii)(B) do not include:
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A. Fees for actual collection costs, including attorney’s fees, to collect any credit
extended on the prepaid account if otherwise permitted by law. Late payment fees are not
considered fees imposed for actual collection costs. See comment 61(a)(4)(ii)(B)(2)-1.i.D.
Paragraph 61(a)(4)(ii)(B)(3)
1. Fees or charges covered by § 1026.61(a)(4)(ii)(B)(3). i. To qualify for the exception
in § 1026.61(a)(4)(ii)(B), the prepaid account issuer may not impose any fees or charges on the
asset feature of the prepaid account that are higher when credit is extended on the asset feature or
when there is a negative balance on the asset feature. These types of fees or charges include:
A. Transaction fees where the amount of the fee is higher based on whether the
transaction accesses only asset funds in the asset feature or accesses credit. For example, a $15
transaction charge is imposed on the asset feature each time a transaction is authorized or paid
when there are insufficient or unavailable funds in the asset feature at the time of the
authorization or settlement. A $1.50 fee is imposed each time a transaction only accesses funds
in the asset feature. The $15 charge is a charge described in § 1026.61(a)(4)(ii)(B)(3) because
the amount of the transaction fee is higher when the transaction accesses credit than the amount
of the fee that applies when the transaction accesses only asset funds in the asset feature; and
B. A fee for a service on the prepaid account where the amount of the fee is higher based
on whether the service is requested when the asset feature has a negative balance. For example,
if a prepaid account issuer charges a higher fee for an ATM balance inquiry requested on the
prepaid account if the balance inquiry is requested when there is a negative balance on the asset
feature than the amount of fee imposed when there is a positive balance on the asset feature, the
balance inquiry fee is a fee described in § 1026.61(a)(4)(ii)(B)(3) because the amount of the fee
is higher based on whether it is imposed when there is a negative balance on the asset feature.
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ii. Fees or charges described in § 1026.61(a)(4)(ii)(B) do not include:
A. Transaction fees on the prepaid account where the amount of the fee imposed when
the transaction accesses credit does not exceed the amount of the fee imposed when the
transaction only accesses asset funds in the prepaid account. For example, assume a $1.50
transaction charge is imposed on the prepaid account for each paid transaction that is made with
the prepaid card, including transactions that only access asset funds, transactions that take the
account balance negative, and transactions that occur when the account balance is already
negative. The $1.50 transaction charge imposed on the prepaid account is not a fee described in
§ 1026.61(a)(4)(ii)(B); and
B. A fee for a service on the prepaid account where the amount of the fee is not higher
based on whether the service is requested when the asset feature has a negative balance. For
example, if a prepaid account issuer charges the same amount of fee for an ATM balance inquiry
regardless of whether there is a positive or negative balance on the asset feature, the balance
inquiry fee is not a fee described in § 1026.61(a)(4)(ii)(B).
Paragraph 61(a)(4)(ii)(C)
1. Fees or charges not covered by § 1026.61(a)(4)(ii)(B). Under § 1026.61(a)(4)(ii)(C), a
prepaid account issuer may still satisfy the exception in § 1026.61(a)(4) even if it debits fees or
charges from the prepaid account when there are insufficient or unavailable funds in the asset
feature of the prepaid account to cover those fees or charges at the time they are imposed, so
long as those fees or charges are not the type of fees or charges enumerated in
§ 1026.61(a)(4)(ii)(B). A fee or charge not otherwise covered by § 1026.61(a)(4)(ii)(B) does not
become covered by that provision simply because there are insufficient or unavailable funds in
the asset feature of the prepaid account to pay the fee when it is imposed. For example, assume
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that a prepaid account issuer imposes a fee for an ATM balance inquiry and the amount of the
fee is not higher based on whether credit is extended or whether there is a negative balance on
the prepaid account. Also assume that when the fee is imposed, there are insufficient or
unavailable funds in the asset feature of the prepaid account to pay the fee. The ATM balance
inquiry fee does not become a fee covered by § 1026.61(a)(4)(ii)(B) because the fee is debited
from the prepaid account balance when there are insufficient or unavailable funds in the asset
feature of the prepaid account to cover the fee at the time it is imposed.
61(a)(5) Definitions
Paragraph 61(a)(5)(iii)
1. Card network or payment network agreements. A draw, transfer, or authorization of
the draw or transfer from a credit feature may be effectuated through a card network or a
payment network. However, for purposes of § 1026.61(a)(5)(iii), agreements to participate in a
card network or payment network themselves do not constitute an “agreement” or a “business,
marketing, or promotional agreement or other arrangement” described in § 1026.61(a)(5)(iii)(B)
or (C), respectively.
2. Relationship to prepaid account issuer. A person (other than a prepaid account issuer
or its affiliates) that can extend credit through a separate credit feature will be deemed to have an
arrangement with the prepaid account issuer if the person that can extend credit, its service
provider, or the person’s affiliate has an arrangement with the prepaid account issuer, its service
provider such as a program manager, or the issuer’s affiliate. In that case, the person that can
extend credit will be a business partner of the prepaid account issuer. For example, if the
affiliate of the person that can extend credit has an arrangement with the prepaid account issuer’s
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affiliate, the person that can extend credit will be the business partner of the prepaid account
issuer.
61(a)(5)(iii)(D) Exception For Certain Credit Card Account Arrangements
1. When the exception applies. If the exception in § 1026.61(a)(5)(iii)(D) applies, a
person that can extend credit through the credit card account is not a business partner of a
prepaid account issuer with which it has an arrangement as defined in § 1026.61(a)(5)(iii)(A)
through (C). Accordingly, where a consumer has authorized his or her prepaid card in
accordance with § 1026.61(a)(5)(iii)(D) to be linked to the credit card account in such a way as
to allow the prepaid card to access the credit card account as described in
§ 1026.61(a)(5)(iii)(D)(2), the linked prepaid card is not a hybrid prepaid-credit card with respect
to the linked credit card account. Rather, the linked credit card account is a non-covered separate
credit feature as discussed in § 1026.61(a)(2)(ii). See comment 61(a)(2)-5. In this case, by
definition, the linked credit card account will be subject to the credit card rules in this regulation
in its own right because it is a credit card account under an open-end (not home-secured)
consumer credit plan, pursuant to the condition set forth in § 1026.61(a)(5)(iii)(D)(1).
Paragraph 61(a)(5)(iii)(D)(1)
1. Traditional credit card. For purposes of § 1026.61(a)(5)(iii)(D), “traditional credit
card” means a credit card that is not a hybrid prepaid-credit card. Thus, the condition in
§ 1026.61(a)(5)(iii)(D)(1) is not satisfied if the only credit card that a consumer can use to access
the credit card account under an open-end (not home-secured) consumer credit plan is a hybrid
prepaid-credit card.
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Paragraph 61(a)(5)(iii)(D)(2)
1. Written request. Under § 1026.61(a)(5)(iii)(D)(2), any accountholder on either the
prepaid account or the credit card account may make the written request.
Paragraph 61(a)(5)(iii)(D)(4)
1. Account terms, conditions, or features. Account terms, conditions, and features subject
to § 1026.61(a)(5)(iii)(D)(4) include, but are not limited to:
i. Interest paid on funds deposited into the prepaid account, if any;
ii. Fees or charges imposed on the prepaid account (see comment 61(a)(5)(iii)(D)(4)-3 for
additional guidance on this element with regard to load fees);
iii. The type of access device provided to the consumer;
iv. Minimum balance requirements on the prepaid account; or
v. Account features offered in connection with the prepaid account, such as online bill
payment services.
2. The same terms, conditions, and features apply to the consumer’s prepaid account.
For the exception in § 1026.61(a)(5)(iii)(D) to apply, under § 1026.61(a)(5)(iii)(D)(4), the
prepaid account issuer must not vary the terms, conditions, and features on the consumer’s
prepaid account depending on whether the consumer has authorized linking the prepaid card to
the credit card account as described in § 1026.61(a)(5)(iii)(D)(2). For example, a prepaid
account issuer would not satisfy this condition of § 1026.61(a)(5)(iii)(D)(4) if it provides on a
consumer’s prepaid account rewards points or cash back on purchases with the prepaid card
where the consumer has authorized a link to the credit card account as discussed above while not
providing such rewards points or cash back on the consumer’s account if the consumer has not
authorized such a linkage.
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3. Example of impermissible variations in load fees. For the exception in
§ 1026.61(a)(5)(iii)(D) to apply, under § 1026.61(a)(5)(iii)(D)(4), the prepaid account issuer
must apply the same fees to load funds from the credit card account that is linked to the prepaid
account as described in § 1026.61(a)(5)(iii)(D)(2) as it charges for a comparable load on the
consumer’s prepaid account to access a credit feature offered by a person that is not the prepaid
account issuer, its affiliates, or a person with which the prepaid account issuer has an
arrangement as described in § 1026.61(a)(5)(iii)(A) through (C). For example, a prepaid account
issuer would not satisfy this condition of § 1026.61(a)(5)(iii)(D)(4) if it charges on the
consumer’s prepaid account $0.50 to load funds in the course of a transaction from a credit card
account offered by a card issuer with which the prepaid account issuer has an arrangement, but
$1.00 to load funds in the course of a transaction from a credit card account offered by a card
issuer with which it does not have an arrangement.
Paragraph 61(a)(5)(iii)(D)(5)
1. Specified terms and conditions. For purposes of § 1026.61(a)(5)(iii)(D), “specified
terms and conditions” on a credit card account means:
i. The terms and conditions required to be disclosed under § 1026.6(b), which include
pricing terms, such as periodic rates, annual percentage rates, and fees and charges imposed on
the credit card account; any security interests acquired under the credit account; claims and
defenses rights under § 1026.12(c); and error resolution rights under § 1026.13;
ii. Any repayment terms and conditions, including the length of the billing cycle, the
payment due date, any grace period on the transactions on the account, the minimum payment
formula, and the required or permitted methods for making conforming payments on the credit
feature; and
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iii. The limits on liability for unauthorized credit transactions.
2. Same specified terms and conditions regardless of whether the credit card account is
linked to the prepaid account. For the exception in § 1026.61(a)(5)(iii)(D) to apply, under
§ 1026.61(a)(5)(iii)(D)(5), the card issuer must not vary the specified terms and conditions on the
consumer’s credit card account depending on whether the consumer has authorized linking the
prepaid card to the credit card account as described in § 1026.61(a)(5)(iii)(D)(2). The following
are examples of circumstances in which a card issuer would not meet the condition described
above:
i. The card issuer structures the credit card account as a “charge card account” (where no
periodic rate is used to compute a finance charge on the credit card account) if the credit feature
is linked to the prepaid card as described in § 1026.61(a)(5)(iii)(D)(2), but applies a periodic rate
to compute a finance charge on the consumer’s account (and thus does not use a charge card
account structure) if there is no such link. See § 1026.2(a)(15)(iii) for the definition of “charge
card.”
ii. The card issuer imposes a $50 annual fee on a consumer’s credit card account if the
credit feature is linked to the prepaid card as described in § 1026.61(a)(5)(iii)(D)(2), but does not
impose an annual fee on the consumer’s credit card account if there is no such link.
3. Same specified terms and conditions regardless of whether credit is accessed by the
prepaid card or the traditional credit card. To satisfy the condition of
§ 1026.61(a)(5)(iii)(D)(1), the credit card account must be a credit card account under an open-
end (not home-secured) consumer credit plan that a consumer can access through a traditional
credit card. As explained in comment 61(a)(5)(iii)(D)(1)-1, for purposes of
§ 1026.61(a)(5)(iii)(D), “traditional credit card” means a credit card that is not a hybrid prepaid-
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credit card. For the exception in § 1026.61(a)(5)(iii)(D) to apply, under
§ 1026.61(a)(5)(iii)(D)(5), a card issuer must not vary the specified terms and conditions on the
credit card account when a consumer authorizes linking the account with the prepaid card as
described in § 1026.61(a)(5)(iii)(D)(2) depending on whether a particular credit extension from
the credit card account is accessed by the prepaid card or by the traditional credit card.
i. The following examples are circumstances in which a card issuer would not meet the
condition of § 1026.61(a)(5)(iii)(D)(5) described above:
A. The card issuer considers transactions using the traditional credit card to obtain goods
or services from an unaffiliated merchant of the card issuer as purchase transactions with certain
annual percentage rates (APRs), fees, and a grace period that applies to those purchase
transactions, but treats credit extensions as cash advances that are subject to different APRs, fees,
grace periods, and other specified terms and conditions where the prepaid card is used to draw,
transfer, or authorize the draw or transfer of credit from the linked credit card account in the
course of authorizing, settling, or otherwise completing transactions conducted with the prepaid
card to obtain goods or services from an unaffiliated merchant of the card issuer.
B. The card issuer generally treats one-time transfers of credit using the credit card
account number to asset accounts as cash advance transactions with certain APRs and fees, but
treats one-time transfers of credit using the prepaid card to the prepaid account as purchase
transactions that are subject to different APRs and fees.
ii. To apply the same rights under § 1026.12(c) regarding claims and defenses applicable
to use of a credit card to purchase property or services, the card issuer must treat an extension of
credit as a credit card transaction to purchase property or services where a prepaid card is used to
draw, transfer, or authorize the draw or transfer of credit from the linked credit card account in
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the course of authorizing, settling, or otherwise completing transactions conducted with the
prepaid card to purchase property or services and provide the same rights under § 1026.12(c) as
it applies to property or services purchased with the traditional credit card. This includes
situations where a consumer uses a prepaid card to make a purchase to obtain property or
services from a merchant and credit is transferred from the linked credit card account in the
course of authorizing, settling, or otherwise completing the prepaid transaction to make the
purchase. For a transaction where a prepaid card is used to obtain property or services from a
merchant and the transaction is partially paid with funds from the asset feature of the prepaid
account, and partially paid with credit from the linked credit card account, the amount of the
purchase transaction that is funded by credit would be subject to this guidance. A card issuer is
not required to provide the rights under § 1026.12(c) with respect to the amount of the
transaction funded from the prepaid account.
iii. To apply the same limits on liability for unauthorized extensions of credit from the
credit card account using the prepaid card as it applies to unauthorized extensions of credit from
the credit card account using the traditional credit card, the card issuer must treat an extension of
credit accessed by the prepaid card as a credit card transaction for purposes of the limits on
liability for unauthorized extensions of credit set forth in § 1026.12(b) and impose the same
liability under § 1026.12(b) to this credit extension as it applies to unauthorized transactions
using the traditional credit card.
* * * * *
61(b) Structure of Credit Features Accessible by Hybrid Prepaid-Credit Cards
1. Credit subaccount on a prepaid account. If a credit feature that is accessible by a
hybrid prepaid-credit card is structured as a subaccount of the prepaid account, the credit feature
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must be set up as a separate balance on the prepaid account such that there are at least two
balances on the prepaid account—the asset account balance and the credit account balance.
2. Credit extended on a credit subaccount or a separate credit account. Under
§ 1026.61(b), with respect to a credit feature that is accessed by a hybrid prepaid-credit card, a
card issuer at its option may structure the credit feature as a separate credit feature, either as a
subaccount on the prepaid account that is separate from the asset feature or as a separate credit
account. The separate credit feature would be a covered separate credit feature accessible by a
hybrid prepaid-credit card under § 1026.61(a)(2)(i). Regardless of whether the card issuer is
structuring its covered separate credit feature as a subaccount of the prepaid account or as a
separate credit account:
i. If at the time a prepaid card transaction is initiated there are insufficient or unavailable
funds in the asset feature of the prepaid account to complete the transaction, credit must be
drawn, transferred or authorized to be drawn or transferred, from the covered separate credit
feature at the time the transaction is authorized. The card issuer may not allow the asset feature
on the prepaid account to become negative and draw or transfer the credit from the covered
separate credit feature at a later time, such as at the end of the day. The card issuer must comply
with the applicable provisions of this regulation with respect to the credit extension from the
time the prepaid card transaction is authorized.
ii. For transactions where there are insufficient or unavailable funds in the asset feature of
the prepaid account to cover that transaction at the time it settles and the prepaid transaction
either was not authorized in advance or the transaction was authorized and there were sufficient
or available funds in the prepaid account at the time of authorization to cover the transaction,
credit must be drawn from the covered separate credit feature to settle these transactions. The
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card issuer may not allow the asset feature on the prepaid account to become negative. The card
issuer must comply with the applicable provisions of this regulation from the time the transaction
is settled.
iii. If a negative balance would result on the asset feature in circumstances other than
those described in comment 61(b)-2.i and ii, credit must be drawn from the covered separate
credit feature to avoid the negative balance. The card issuer may not allow the asset feature on
the prepaid account to become negative. The card issuer must comply with the applicable
provisions in this regulation from the time credit is drawn from the covered separate credit
feature. For example, assume that a fee for an ATM balance inquiry is imposed on the prepaid
account when there are insufficient or unavailable funds to cover the amount of the fee when it is
imposed. Credit must be drawn from the covered separate credit feature to avoid a negative
balance.
* * * * *
[THIS SIGNATURE PAGE PERTAINS TO THE FINAL RULE TITLED "[RULES CONCERNING PREPAID ACCOUNTS UNDER THE ELECTRONIC FUND TRANSFER ACT (REGULATION E) AND THE TRUTH IN LENDING ACT
(REGULATION Z)]"]
Mick Mulvaney,
Acting Director, Bureau of Consumer Financial Protection.